Banda v ThePeople (SCZ Appeal 144 of 2015) [2015] ZMSC 43 (8 September 2015)

J1 IN THE SUPREME COURT OF ZAMBIA HOLDENAT NDOLA Selected Judgment No. 30 of 2015 P.775 SCZ Appeal No. 144 of 2015 (Criminal Jurisdiction) BETWEEN: SAIDI BANDA AND THE PEOPLE Appellant Respondent Coram: Phiri, Muyovwe and Malila, JJS On the IstSeptember, 2015 and 8th September, 2015 For the Appellant: Mr. V. Kabonga, Messrs Paul Pandala Banda & Co. Mr. H. M. Mweemba, State Advocate, Legal Aid Board For the Respondent: Mrs. M. C. Mwansa, Principal State Advocate, National Prosecutions Authority JUDGMENT MALILA,JS, delivered the Judgment of the Court Cases referred to: 1. 2. 3. 4. 5. 6. 7. 8. Saluwena v. The People (1965) ZR 5 (Reprint). Woolmington v. DPP (1935), ALL ER 1.. David Zulu v. The People (1977) ZR 151. Tebeb v. R (1952) AC 48. Danny Zyambo v. The People (1977) ZR 53. Yotam Banda v. The People (1989) ZR 129. flunga Kalaba and Another v. The People (1981) ZR 102 Sc. P. L. Taylor and Others v. R, 21 Cr. App. R. 20. J2 P.776 9. 10. 11. 12. 13. 14. 15. 16. R v. Abramovitch (1914 - 15) ALL ER 204. Zonde and Others v. The People (1980) ZR 337. Kalebu Banda v. The People (1977) ZR 169 SC. Lukolongo and Others v. The People (1986) ZR 115 (SC). Robson Kapulushi, Webby Kanyakula, Frankson Kapulushi and Watson Masikini v. The People (1978) ZR 200 Sc. Maseka v. The People (1972) ZR 9 (CA). Sumani v. R (1959) (2) R & N 403. Webster Kayi Lumbwe v. The People (1986) ZR 93 Sc. The appellant was tried and convicted of one count of murder by the Lusaka High Court, contrary to Section 200 of the Penal Code, chapter 87 of the laws of Zambia. The particulars of the offence were that the appellant, on a date unknown but between the 12th and 13th September, 2011 at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, did murder one Peter Daka. The material evidence before the trial court, as gIven by eight prosecution witnesses, was wholly circumstantial. The underlying facts and testimonies of the witnesses in this case are set out in the judgment of the High Court now subject of this appeal. For the present purposes a briefer outline will suffice. P.777 The appellant was a Business Development Executive for Allied Mobile (formerly Airtel) where as the deceased was a direct sales agent engaged in the sale of cell phones on behalf of Airte1. Arising from their business association, it seems the appellant became liable to account for some cell phones to the deceased and was scheduled to either pay K75,000,000, the value of the phones, or give the deceased some phones for that value on 12th September, 2011. Having expressed to his wife his misgivings and fear in meeting the appellant, the deceased arranged that he, his wife (Edna Daka, who was PWl) and the deceased's brother (Boniface Moyo, who was PW4),would go to the appellant's father and inform him about the money the deceased had given to the appellant on an order for phones. That visit however never took place. When the deceased's wife called the deceased around 17:00 hours on the 12th September, 2011, the deceased, who had gone to sell phones at Kulima Tower, indicated that he was at Odys with the appellant and had been shown the phones by the appellant and that he would return home not too long thereafter. Curious that her husband/ deceased had not returned home as J4 P.778 intimated, the deceased's wife made a number of frantic calls between 19:00 hours and 20:00 hours to her husband on phone number 0977624107. An unusual thing then occurred. Text messages were sent to the deceased's wife's phone from her husband's (deceased's) phone number. The deceased had hitherto never sent text messages to his wife. A further call made by Edna Daka to the deceased's phone number was picked by the appellant who told the deceased's wife that he was not with her husband. A search for the deceased was launched from the afternoon of the 13th September, 2011 and a report duly made to the Police. The body of the deceased was subsequently found on 15th September at Kansuswa Bridge in Kafue. It had stab wounds on the left cheek, the chest and the right arm. Meanwhile, the appellant was apprehended and detained. Three phones were retrieved from the appellant during investigation. One of the phones was concealed in the appellant's right sock. On that occasion when the deceased's phone number was called, one of the phones in the appellant's possession rang. It was the one that JS P.779 had been hidden in his right sock. The phone was positively identified as belonging to the deceased. It was also established that a text message had been sent to PW3 (Reverend Levinson Helix Martin Phiri) from the deceased's phone number around 21:00 hours on the 12th September, 2011. During the interview of the appellant at Castle Police Post on the 15th September, 2011, strange occurrences were recorded. The appellant told the police that he had travelled to Ndola on 12th September, 2011 and was not with the deceased on that day. The appellant manifested strange uneasiness during the course of the interview. When asked about the bruises which were visible in his neck, the appellant stated that he had a fight with his boss in Ndola on the 12th September, 2011. At that point, the Police also noticed that the appellant was hiding his left hand. It was later discovered that he had a plastic wrapped on his left far finger which revealed a fresh wound with more than five stitches on it. The appellant stated that, that wound too, was sustained in the fight with his superior at Ndola. J6 P.780 A subscriber information analyst, Isaac Musadabwe Banda from Airtel, was called as PW6. Acting on a search warrant from Zambia Police, he extracted call logs for several numbers including those of the appellant, the deceased and the deceased's wife. The call records showed that the deceased's number, 0977624107, did transact with the appellant's number 0978022149 on the 12thSeptember, 2011, on nine occasions. The report also showed that number (appellant's number) transacted with 0977624107 (deceased's number) on 12th September, 2011 by way of voice calls at 08.35 hours and 12.05 hours. The record further showed that the deceased's number, 0977624107, transacted with the deceased's wife's number 0979785136 on the 12th September, 2011 four times. There was, however, no transaction from 0979785136 to 0977624107 on the said date after 17:00 hours. On the 13th September, 2011, the deceased's number 0977624107 sent a message to the deceased's wife's number 0979785136 at 07:53 hours. The last transaction from the deceased's number according to the report, was on 14th September, 2011 at 16:42 hours when a voice call to 0977644140 was made. J7 P.781 After hearing the prosecution witnesses and the appellant and his two witnesses having given evidence on oath, the learned trial judge came to the conclusion that the prosecution had proved on the circumstantial evidence submitted the case against the appellant to the requisite standard, and convicted the appellant accordingly. As she found no extenuating circumstances, the learned trial judge sentenced the appellant to suffer the mandatory death sentence. Disenchanted by that judgment, the appellant then launched the present appeal and formulated three grounds alleging misdirection and errors on the part of the trial judge. Prior to the hearing, the appellant had, through his learned counsel, Messrs Paul Pandala Banda & Co., filed in a notice of appeal containing one ground framed as follows: "The court below erred in law and fact in convicting the appellant and by relying on the doctrine of recent possession instead of proof of malice aforethought as defined in Sections 200 and 204 of the Penal Code, Cap 87 of the Laws of Zambia." At the hearing of the appeal on 1st September, 2015 Mr. Mweemba, learned Legal Aid Counsel, who appeared on behalf of J8 P.782 the appellant as co-counsel to Mr. Kabonga, sought leave to file in another set of grounds of appeal and heads of argument. Upon there being no objection from the learned counsel for the respondent, we allowed the application. The two grounds of appeal filed read as follows: "around one The learned trial court erred both in law and in fact when it convicted on circumstantial evidence which did not raise the inference of guilt as the only inference. around two The learned trial judge in the lower court erred in law and in fact when it refused the explanation of the appellant which was reasonably possible." Mr. Mweemba then indicated that the new grounds of appeal and heads of argument should be treated together with, and additional to, those filed by Messrs Paul Pandala Banda. He further indicated that he would rely entirely on the heads of argument as filed. When Mr. Kabonga, who took his seat at the bar when the hearing of the appeal was already underway, was asked whether he wished to address the court, he gracefully J9 P.783 indicated that he too, would rely on the submissions filed in court. We propose to deal with the grounds of appeal as raised by the learned counsel for the appellant. What is clear to us, however, is that all these grounds snowball into one key issue whether or not a conviction of the appellant based on circumstantial evidence in the present case, was competent. As regards ground one of the appeal which was filed, as we indicated already, by Messrs Paul Pandala Banda and Co., on behalf of the appellant, the learned counsel focused his argument on the doctrine of recent possession. The part of the lower court's judgment which was attacked on this basis is a passage at J14 which reads: "It is not disputed that the accused was found in possession of the deceased's person's phone, a Nokia 1280, black in colour and I so find. I further find accused person's claim that he informed PW8, Detective Inspector Sialubona, that he had Peter Daka's phone upon arrival at the Police Station, to be a fabrication. If the claim were true, PW8 would have been vigorously questioned on the issue .... " J10 P.784 According to the learned semor counsel for the appellant, the requirement for malice aforethought was replaced by the learned judge, with possession of property suspected to have been stolen or unlawfully obtained. We must observe from the outset that we find the arguments of the learned senior counsel on this ground not only unclear but most unconventional and plainly incredible. Counsel accused the court of neglecting to perform, what the appellant's counsel called the duty of the court to raise questions on behalf of the appellant or to indicate to the appellant's advocates to ask further questions; and that the court was a by stander and not an arbiter during the trial. The learned counsel for the appellant then oscillated from criticism of the court, to attacking defence counsel in the court below. To intent not at all clear to us, counsel submitted that the appellant was not effectively represented by counsel in the lower court. Mr. Kabonga, whose firm did not represent the appellant at trial, also cited the case of Saluwena v. The Peoplel to support the submission that if the accused's explanation is reasonably HI P.785 possible although not probable, then reasonable doubt exists and the prosecution cannot be said to have discharged its burden of proof. We were also referred to J 17 of the lower court's judgment where the judge made a statement to the effect that there was no proof that the appellant met the deceased on a particular day. We were urged to take judicial notice that a cellular phone may be passed by an owner to some other person for use or safe keeping and, therefore, that we should frown on the lower court's view that a cellular phone is "a very personal article that is not interchangeab Ie." The learned counsel for the appellant went on, with much repetition, to make additional submissions on this ground, many of which were clearly not borne out of the evidence before the trial court. He submitted, for example, that a proper inference to make should have been that the appellant inadvertently picked up and carried the deceased's phone; that "immediately it was announced that the appellant had the deceased's phone, hell broke loose on the appellant. Mob justice perpetrators descended on the appellant"; and that "the elevation of the deceased's phone to a murder weapon should be dismissed." J12 P.786 Veering completely off the one ground premised on the doctrine of recent possession upon which the submissions were based, the learned senior counsel next moved to the issue of finger prints, arguing that if the appellant's finger prints had been lifted from the deceased's phone, the court would have been justified to convict the appellant. Counsel complained that there was no hand-writing expert evidence to dispute that Lameck Kamalo wrote the note exhibit D3; that the police did not charge the said Lameck Kamalo with murder and did not present him as a witness either. This, according to counsel, was a fatal dereliction of duty; that the notebook in which the police recorded the appellant's statement should have been put in evidence; and that there was no medical report to support the claims on the stitches on the appellant's finger. The learned counsel accused the prosecution of fabricating evidence for the sake of implicating the appellant. He ended on a potentious note that telling lies before a court of law is a crime. He urged us to allow the appeal. J13 P.787 We turn now to consider the two grounds of appeal and heads of argument filed in by the Legal Aid Board, also on behalf of the appellant. These were argued compositely. The thrust of Mr. Mweemba's argument was that the conviction of the appellant on circumstantial evidence was incompetent In the circumstances. The learned counsel began by reiterating the cardinal rule of criminal law as explained in Woolmington v. DPP2 that it beholves the prosecution in criminal matters to prove the accused guilty beyond reasonable doubt. The learned counsel submitted that bearing in mind what this court stated in the case of David Zulu v. The People3 regarding the peculiar nature of circumstantial evidence, and having regard also to the caution that should attend the drawing of any inference of guilt from circumstantial evidence as explained in the cases of Tebeb v. R4 and Danny Zyambo v. The Peoples, it was unsafe for the trial court to have convicted the appellant on circumstantial evidence. The learned legal aid counsel also referred us to the judgment in the case of Saluwema v. The People1 which was also adverted to by Mr. Kabonga in his submissions, and quoted a passage to the J14 P.788 effect that where the accused's explanation is reasonably possible but not probable, then reasonable doubt exists and it is unsafe to convict. Mr. Mweemba submitted that the explanation by the appellant was reasonably possible though it may not have been probable. The unshaken evidence on record, according to Mr. Mweemba, was that the appellant told the police that he got the deceased's phone from Lameck Kamalo, who the state chose not to call as a witness. This omission to call Lameck Kamalo did, in Mr. Mweemba's submission, put the case of the prosecution in doubt and should have impelled the court to be guided by the principle in the case of Yotam Banda v. The People6 where it was stated that: "The court is under a duty to consider various alternative inferences which have been drawn when the only evidence against the accused is that he was in possession of stolen property." The gist of the learned legal aid counsel's submission was simply that there were other inferences other than that of the guilt of the appellant which the trial court could have drawn from J15 P.789 the circumstance. The motive for the murder was, according to Mr. Mweemba, equally not established. We were urged to uphold the appeal. In responding to submission by the appellant's learned counsel, Mrs. Mwansa, learned Principal State Advocate, made very spirited oral submissions supporting the conviction. She submitted that the trial judge could not be faulted as the evidence before her, though circumstantial, was so overwhelming and compelling that it took the case out of the realm of conjecture, thereby permitting only one inference - that of the appellant's guilt. She relied on the dictum in the case of David Zulu v. The People3 • Mrs. Mwansa fervidly submitted that the killing of the deceased was with malice aforethought as can be inferred from the nature of the wounds sustained by the deceased and as confirmed by the autopsy report which was admitted in evidence and is on the record of appeal. The stabbing penetrated the chest on to the deceased's heart. J16 P.790 Mrs. Mwansa then specifically responded to the grounds of appeal filed by the learned counsel for the appellant. She submitted that it was odd indeed that the appellant was found with the deceased's phone. As the call records received in evidence at the trial show, the appellant had transacted with the deceased's phone on 13th and 14th September, 2011, by which dates the deceased had already been killed. The learned counsel recapped the facts regarding the attempt by PWI to speak to her husband, the deceased, on the 12th September 2011, and how the appellant instead answered the phone. She also recounted how PWI later received text messages from the deceased's phone line. These, according to Mrs. Mwansa, were odd coincidences. Relying on the case of Ilunga Kalaba and Another v. The People7 , the learned counsel submitted that these unexplained coincidence offered support to the charge against the appellant. The learned Principal State Advocate repudiated the appellant's explanation as to what transpired as unreasonable. She also submitted that the doctrine of recent possession which the learned counsel for the appellant J17 P.791 had raised was inapplicable as there were no theft related charges against the appellant. According to Mrs. Mwansa, the learned trial judge properly explained the basis upon which she convicted the appellant on the circumstantial evidence available before her and could, therefore, not be faulted. It was further contended that, as the evidence showed, the appellant owed the deceased about K70,OOO,OOOit follows that the appellant had the motivation to commit the crime he was charged with. While conceding that it was an incongruous omission on the part of the prosecution not to call Lameck Kamalo as witness, Mrs. Mwansa maintained that, aside whatever evidence Kamalo would have given, the aggregate of the circumstantial evidence available was still sufficient to sustain the conviction of the appellant. It was Mrs. Mwansa's fervid prayer that we uphold the conviction. We have carefully considered the evidence on record, the judgment of the trial court, as well as the animated submissions of counsel. It is rightly common cause that the evidence upon J18 P.792 which the learned trial judge convicted the appellant was all circumstantial. None of the prosecution witnesses testified that they saw the appellant kill the deceased. We must state at the outset that it is competent in some instances to convict upon circumstantial evidence. The law with respect to circumstantial evidence has been restated many times by this court, and it is that, in order to convict based on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of the accused's guilt. We reiterate the cautionary note that we sounded in the case of David Zulu v. The People3 that- "It is a weakness peculiar to circumstantial evidence that by its very nature it is not direct proof of a matter at issue but rather is proof of facts not in issue but relevant to the facts in issue and from which an inference of the facts in issue may be drawn. It is incumbent on a trial judge that he should guard against drawing wrong inferences from the circumstances evidence at his disposal before he can feel safe to convict. The judge must be satisfied that the circumstantial evidence has taken the case out of the realm of conjuncture so that it attains such a degree of cogency which can permit only an inference of guilty." JI9 P.793 It is unnecessary for us, in the present case, to gIVeany further elaboration on how circumstantial evidence should and has been applied by our courts. We, however, wish to restate the law as regards circumstantial evidence by adding that this form of evidence, notwithstanding its weakness as we alluded to in the David Zulu3 case, is in many instances probably as good, if not even better that direct evidence. We are sympathetic to the observation by Lord Heward, Chief Justice of England in P. L. Taylor and Other v. R8 , where at page 21 he states: "It has been said that the evidence against the applicants is circumstantial; so it is but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undersigned coincidences, is capable of proving a proposition with the accuracy of mathematics." Where the prosecution's case depends wholly or in part on circumstantial evidence, the court is, in effect, being called upon to reason in a staged approach. The court must first find that the prosecution evidence has established certain basic facts. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves, those facts cannot, therefore, prove the guilt of the accused person. The court should then infer or conclude from a J20 P.794 combination of those established facts that a further fact or facts exist. The court must then be satisfied that, those further facts implicate the accused in a manner that points to nothing else but his guilt. Drawing conclusions from one set of established facts to find that another fact or facts are proved, clearly involves a logical and rational process of reasoning. It is not a matter of casting any onus on the accused, but a conclusion of guilt a court is entitled to draw from the weight of circumstantial evidence adduced before it. With this position firmly in mind, we now have to consider whether the prosecution, through the circumstantial evidence adduced before the trial court, proved the case against the appellant beyond reasonable doubt. Mr. Kabonga made arguments concerning recent possession and attempted to apply those arguments to the present case. The burden of his argument, as we understand it, is that, the learned trial judge substituted recent possession by the appellant of the deceased's phone for malice aforethought which should have been established independently. We have no doubt whatsoever that Mr. J21 P.795 Kabonga made this submission in good faith and with perhaps, a touch of unwarranted optimism. Frankly, we do not think this is an argument worth much of the learned senior counsel's time, let alone that of the court. The doctrine of recent posseSSlOn refers to possesslOn of property that has been recently stolen. It is simply part of the principles of circumstantial evidence, but applied only to offences of handling stolen goods and is relevant to proving the mens rea for the offence. The doctrine was explained long ago in the case of R v. Abramovitch9 . It lays down the principle that when a person charged with handling stolen goods is found in possession of, or dealing with, goods that have recently been stolen, a court may infer that he is guilty if he offers no explanation of his possession of them or it does not believe the explanation that he gives. This position was also explained by this court in the case of Zonde and Others v. The PeoplelO . In the present case, the appellant was charged with murder. There is no issue that the deceased's phone was stolen. We do not understand how the doctrine of recent possession which is akin • J22 P.796 to theft of property, could be relied upon in this case. We accept Mrs. Mwansa's submission that the doctrine is inapplicable. We think, with utmost respect to the learned senior counsel for the appellant who advanced this argument, that his argument on this score could have been better thought through and more elegantly structured before presentation. Our observation applies equally to all the other arguments he made such as the alleged duty of the trial court to ask questions on behalf of a represented accused person or to prompt his counsel to pose questions. They apply also to the charge that Mr. Kabonga made in his heads of argument that the appellant was poorly represented at trial. Mr. Kabonga also argued that there was no handwriting expert evidence to disprove that Kamalo wrote the note marked as exhibit D3 (the handover note), nor did the Police charge Lameck Kamalo for murder. They did not present him as a witness either. Furthermore, the notebook in which the Police recorded the appellant's statement was not put in evidence. This too, according to Mr. Kabonga, was dereliction of duty on the part of the investigators and the prosecutor. He cited the case of Kalebu Banda v. The Peoplell where it was stated that where evidence • J23 available only to the Police is not placed before the court, it must be assumed that had it been produced, it would have been favourable to the accused. P.797 We take it that by this submission, Mr. Kabonga implies that had the Police notebook been produced in court, and had Lameck Kamalo been called as a witness, and had a hand-writing expert been called to testify as to the authenticity of exhibit D3, the conviction of the appellant would not have been made. We reiterate what we have stated in numerous cases that where evidence available only to the Police is not placed before the court, a presumption should be made that such evidence would have been favourable to the accused. As we observed in the case of Lukolongo and Others v. The People12 , however, that presumption is not necessarily fatal to the prosecution's case as we understand the word "favourable" to mean "in favour of' and not "conclusive". In Robson Kapulushi, Webby Kanyakula, Frankson Kapulushi and Watson Masikini v. The People13 we observed • J24 that the presumption that may arise from any case of dereliction of duty, is displaceable by strong evidence to the contrary. P.798 In the present case, therefore, determination of the issue whether failure by the prosecution to produce the pieces of evidence which Mr. Kabonga referred to, is one dependent on our assessment of the weight of circumstantial evidence available before the trial court. The learned semor counsel's incoherent discourse on extraneous arguments in his submissions have, in our VIew, reduced to insignificance the mam Issue that may have been sought to be highlighted under that ground of appeal. These kinds of arguments have the overall effect of impoverishing our jurisprudence. We do not want to say that that ground of appeal is bogus, but we can say it has failed. As we understand Mr. Mweemba's arguments, the circumstantial evidence upon which the trial court convicted the appellant was weak and allowed other inference to be drawn. The argument made is that the inference of the appellant's guilt was not the only inference to be made in the present circumstances; • J25 that the appellant had made a reasonable explanation as to how he came in possession of the deceased's phone. P.799 In effect, we have here to consider whether the learned trial court employed the reasoning that we explained earlier on and whether the evidence satisfied the three tests which we have already postulated, namely that (i) the circumstances from which the inference of guilt is sought to be drawn, must be cogently and firmly established, (ii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that, within all human probability, the crime was committed by the accused and none else. A perusal of the judgment of the lower court reveals to us that the learned judge employed meticulous analysis of this evidence and made many findings of fact as she set them out between JI3 and JI8 of her judgment. Those findings by the trial judge related to basic facts which she accepted as established. And to secure a conviction, those basic facts presuppose other facts pointing to nothing else but the guilt of the appellant. • J26 P.800 Without attempting an exhaustive recapitulation of those basic facts, even if we could, the learned trial judge found that the deceased was murdered between the 12th and the 13th September, 2011; that the cause of death was cardiac haemotampanede due to stab wounds with penetration into the heart; that the deceased was known to the appellant; that the appellant called the deceased on the 11th September, 2011 on 17 different times, the last such calls being at 20:55 hours and 20:56 hours; that the appellant called the deceased on 12th September, 2011 at 08:35 hours and at 12:05 hours and that a call was made from the deceased's phone to the deceased's wife on the 12th September, 2011 at 22:01 hours and further that two SMS messages were sent from the deceased's phone to the deceased's wife's phone at 22:03 hours; that a call was made from the deceased's phone to the deceased's wife's phone at 13:44 hours on the 14th September, 2011; that the appellant was found in possession of the deceased's phone, a Nokia 1280, black in colour; that the accused was beaten up at the Police Station and taken for treatment; that the appellant and the deceased had some important pressing issue or issues to discuss; that no • J27 P.80I explanation was offered by the appellant to the officer as to how he came into possession of the deceased's phone. In this connection, she discounted the appellant's explanation of the handwritten note regarding the handover of the phone from Kamalo to the appellant. She also found as a fact that the appellant did not allude to the handwritten note at the time the appellant was being interviewed. All these findings of fact by the learned trial judge were made in the backdrop of her having rightly observed that the inference of guilt on the appellant's part was sought to be drawn from the possession by the appellant of the deceased's phone. Having found that those basic facts were established before her, the learned trial judge proceeded to ask herself a number of questions; why did the appellant not tell PW8 at the time he was being interviewed that he had a handwritten note from Lameck Kamalo regarding the handover of the deceased's phone? If a reasonable explanation for his possession of the deceased's phone was available, why did the appellant have to conceal the phone in his socks? And why did he put up abnormal resistance when it •• • J28 P.802 became apparent to him that the deceased's phone would be discovered by the Police? If indeed the deceased did leave his phone in Lameck Kamalo's car, why would Lameck Kamalo who the appellant said had everyday contact with direct sales agents like the deceased, give the phone to the appellant to give to the deceased? The learned trial judge was satisfied that all the circumstances taken together had the definite tendency of unerringly pointing towards the guilt of the appellant. In the circumstances, she made the inference that it was the appellant who killed the deceased. In the case of Maseka v. The People14 the Court of Appeal, predecessor to this court, stated as follows: "an explanation which might reasonably be true entitles an accused to an acquittal even if the court does not believe it; an accused is not required to satisfy the court as to his innocence, but simply to raise a reasonable doubt as to his guilt. A fortiori, such a doubt is present if there exists an explanation which might reasonably be true; for the court to be in doubt does not imply a belief in the honesty generally of the accused, nor in the truth of the particular explanation in question. An accused who is shown to have told untruths in material respect is in no different • • J29 position from any other witnesses; the weight be attached to the remainder of his evidence in reduced, but it is not rendered worthless. P.803 To us therefore, the question is whether there was an explanation offered by the appellant, not whether the explanation given was true or not. The issue is whether if there was an explanation given, it was reasonable. In Sumani v. R.15 Beadle J. put the position thus: "It is not sufficient to say that the explanation, so far as it purports to establish the accused's complete innocence, is manifestly false, and that therefore his entire explanation must be rejected and the case treated as if no explanation at all had been given. The main parts of an explanation might be manifestly false, but there may nevertheless be other parts which might reasonably be true, even after making due allowance for the falsity of the rest of the explanation. In such a case those parts of the explanation which might reasonably be true are entitled to due consideration and should not be rejected along with the rest." In the present case, the learned trial judge made a finding of fact that no explanation was given by the appellant to the Police at the time of the interview. She disbelieved the appellant's version that a handwritten note of the handover of the phone by Kamalo could explain his being in possession of the deceased's P.804 phone. This issue, in our VIew, resolves itself into one of credibility. The learned judge did not accept as credible the explanation of the appellant. As we have stated in various cases including that of Webster Kayi Lumbwe v. The People , we as an appeal court, will not readily interfere with a trial court's findings of fact on issues of credibility unless it is clearly shown that the finding was erroneous. This has not been demonstrated. We are, for our part, perfectly satisfied that the trial court properly dealt with the issues arising and applied the relevant considerations relating to acceptance of circumstantial evidence. We equally agree with Mrs. Mwansa that the circumstantial evidence was overwhelming and compelling. In the result the appeal fails. We uphold the conviction and the sentence. ......................... ;;: "C,1"1" L . \,,-I#~)L c. S. PHIRI SUPREME COURT JUDCE . ~_/-------------- / ,/ ./ - --------- . E. N. C. MUYOVWE SUPREME COURT JUDCE ••••••••••••••• f". [\'\7"' - - - - ,","L:~- --/ -----M. MALI LA, SC SUPREME COURT JUDCE .