The People v Abu Hussen Ibrahim Phiri and Anor (HP/305/2019) [2020] ZMHC 408 (2 October 2020)

HP/305/2019 Before the Honourable Justice Mr. M. D. Bowa in open court on 2 nd October 2020. (Q For the State: Mrs. Mulenga, Mrs. Bauleni and Mr. Choongo N. P. A For the Accused: Mr. Matende, Miss Chulu and Mrs. Chileshe Legal Aid Board JUDGMENT Cases ref erred to: ~ 1. Boniface Chanda Chola & others the people (1988 - 1989) Z. R. 163 (S. C.) 2. Donald Fumbelo vs. the People SCZ Appeal No 476/2013 3. Robertson Kalonga vs. the People SCI NO 25 of 1988 4. Gilbert Chileya vs. the People (1981) Z. R. 33 (S. C.) 5. David Zulu vs. the People ( 19 77) ZR 151 6. George Nswana vs. The People (1988-89) ZR 174 7. Mambwe vs. The People (2014) SCZAppeal No. 113 of 20121 J1 .------■ Legislation referred to 1. The Penal Code Cap 87 of the Laws of Zambia sections 200, 204 & 294(1) 1. 1. Introduction On the 14th July 2019 the lifeless body of Clare N amu tenda was found in a graveyard in 1 O Miles area of the Lusaka Province of the Republic of Zambia. She was partially undressed, had a fractured skull and a screw driver was lodged in her neck. The pathology (I examination conducted concluded that the cause of death was blunt impact trauma to the head. Her husband reported her missing to the police on 13 th of July 2019. The vehicle she left home with was also missing. Both accused persons appeared before this court on information for her murder and a count of aggravated robbery on the 2 nd of December 2019 for plea. They denied the charges. 2. The Case for the State The State called 9 witnesses in aid of its case. The evidence is set out below. 2.1 PWl Rachael Phiri. J2 She testified that she lived with her elder brother in Malalia village in 10 Miles and met Ibrahim Phiri (A 1) through her brother. She later went into a relationship with Mr. Phiri and started living with him. She fell pregnant in the process. Her parents were unaware that she had moved in with him at the time. On the 12 th of July 2019, a lady by the name of Clare came to their house. As far as the witness was aware, A 1 was a traditional healer C. and Clare was one of his clients. She had a rash on her fingers that A 1 was treating and on the day in question he had told her that Clare would be coming through at about 19:00 hours. PW 1 then went to chat with her friends in the backyard bordering a neighbor's house. Between 1800-1900 hours she saw Clare approaching and went and informed Al that his client had arrived. PW 1 then went back to chat with her friends. Shortly after, A 1 's friend Saviour (A2) who had arrived not long after Clare brought her the house keys. He then left stating he was going to a friend's house. Around 21 :00 hours, she bade goodnight to her friends and went to her home. She opened the door to the house and noticed Al's phone was there. Concerned that it was getting late, PW! decided to J3 switch on the phone and called Clare. Her phone was off. She switched off the phone and went to bed. Around 23: 00 hours, Pw 1 heard a knock on the door. She opened the door and Al was standing there with his friend Saviour. She asked him where he was coming from at that late hour. His response was that the work he was doing was quite difficult. A 1 and A2 then left together and she went back to sleep. A 1 returned at (I about 03:00 hours. PWl invariably yelled at him for his late return. He did not respond and went to bed. He woke up at around 05:00 hours, had a bath and left. At about l0hrs, PWl set off to attend to customers at the mobile money stand that she worked. She met Al driving Clare's car along the road. He was with another person whom she did not know. She was certain it was Clare's car he was driving as it was the same vehicle that she used to drive whenever she would come to their house. From her recollection this would be about twice or thrice in a week. Once at the booth, her employer informed her she would not be working on that day so she returned home. At around 12:00 hours, some visitors came through. She recognized one of them to be J4 Clare's close friend that had accompanied her on one of the visits to their home. She recalled there were about 4 to 5 people that came. She received the visitors and invited them into the house. They asked after Al. She advised that he was within the neighborhood and that they should wait for him. One of the visitors inquired about Clare and informed her that she was not at her home. Pwl narrated what had transpired the f previous day and confirmed that Al had Clare's vehicle. She also lamented to the guests about the time that Al had been moving around the previous night. Shortly after, Al walked into the house and greeted everyone present. He inquired if they were his clients and PWl agreed that they were and that they had been waiting for him. Not long after, police officers arrived. They demanded Al to give them Clare's car keys. They found the car parked at the house. A 1 was also asked where Clare was. His response was that she had gone to her home by bus after he escorted her. Al and PW! were then taken to Chilenje Police station where the police officers continued to question where Clare was. JS The next day the 13th of July 2019 the officers. returned to her house and informed her that A 1 who had been detained, had told them that he worked from a graveyard in the area. They requested if she could take them there. She told them she did not know where it was and that perhaps their landlord would know. She then took the police to the landlord, a Mr. Daka who confirmed that he could take them there. (t Mr. Daka then led the police officers to the graveyard. PWl accompanied the group. As they approached, they saw some tyre tracks along the road leading to the graveyard. Mr. Daka expressed surprise with the presence of the tracks and commented there had not been a funeral in that month that would explain the tyre prints heading to the graveyard. Once at the cemetery they disembarked from the vehicle and ~ started searching the grounds. They found Clare's body. Her face was smashed in and her eyes were pierced. The wig and sweater she wore were placed by her side and she was partially naked. PWl identified the body to the police who then took photographs of the corpse. She was also able to identify the body from the slippers and cardigan that the deceased had on the day she last saw her. PWl J6 testified further that the body was lying on the ground on the side of a grave. On the 20 th of July 2019, A 1 and his friend A2 were brought home by the police. She was shown a handbag which she confirmed belonged to the deceased. PW 1 knew the bag as she used to see it with the deceased when she would come to their house. It had a Chitenge material in it. The police also showed her a pounding stick which she noted had blood stains on it. She recognized it to be the one belonging to their household although it had not been in the house. She explained that she had wanted to use it to pound cassava whilst Al was at the police station but did not find it in the house. She testified that A 1 used to use the pounding stick to pound his medicines. She identified the handbag, Chitenge material and pounding stick f in court. She also identified A 1 as Ibrahim Phiri and A2 his friend Saviour. When cross examined PW 1 confirmed that she had an affair with A 1 and did fall pregnant without her family knowing about it. Further that A 1 had not paid any dowry to her family. She denied being upset by that fact. She admitted that she was not happy about the J7 r-------•••••-----------------. time that he left with the deceased and complained about it to the people who came looking for her. She was further not happy about the times the deceased would come to their house as she would visit during the night on some days and would leave with A 1. She accepted that she did not see Al and A2 leave with the deceased. For this reason she accepted as true that she did not know where they were going. She merely assumed they were going f to the graveyard as that is where Al would go whenever the deceased visited as far as she knew. She accepted that A 1 had many clients and that she did not know the handbags for all the clients. She was however able to identify the deceased's handbag as she became very close to her and knew her bag. She accepted that although she saw tyre tracks leading to the graveyard she did not know what car had left the tracks. She disputed the suggestion that the deceased had left her vehicle at their house before. She would always leave with her car. She accepted that other homes did have pounding sticks but insisted that she knew hers. She confirmed that other vehicles do pass on the road leading to the graveyard but maintained that during the period in question, no funeral had occurred that would explain the J8 -------- presence of the tracks. She testified further that the vehicle she saw the deceased drive was the only one she would see her with. There was no re-examination. 2. 2 PW2 Astri.dah Kanjimana Her evidence was that on the 5 th of July 2019 her friend Clare Namundenta called and asked her to escort her to pick up some medicine from 10 miles in Kabangwe area. They later left for Kabangwe using the deceased's car. They arrived at the house of a traditional healer where she was to collect medicine for a condition she had with her hands. They were received by his wife who invited them into the house . The deceased and the traditional healer then went into a room whilst she waited in the living room. After a while they came out and the deceased advised she was done with her business. The deceased then dropped PW2 at her home. A few days later, the deceased elder sister came to her house and informed her that her friend was missing. Further that her husband had called to say she had not returned home the night before. Her sister thus inquired if there was any place that PW2 and the J9 deceased might have been together to aid in their search. PW2 in response told her about the visit to the traditional healer's home. Later Clare's husband came through and told her that his wife had left home stating she was going for prayers with her. She disputed this claim. Police officers also came to inquire about the visit to the healer's home and to request that they be taken there in their quest to find her missing friend. She led the police to the house after initially losing her way as it was only the second time she was going there. In order not to raise alarm some police officers and Clara's husband laid back at a distance from the house whilst PW2, Clair's brother and one plain clothed police officer went ahead to the house. Once there, they found Al's wife. She invited them in and they sat in the living room. Al was not at home at the time. They inquired about his f. whereabouts and were informed he would be returning shortly. PW2 recounted that the wife suspected there was something amiss and asked if there was a problem. Shortly after, Al walked in the house. The officer present apprehended him and started walking him towards the vehicle they came with. It was at that point that the rest of the group joined them. JlO , • The traditional healer was asked about the deceased and her vehicle. He denied any knowledge about her or the vehicle. As the group was making their way out of the yard, they saw the vehicle parked behind his house. The vehicle was covered in dust and had its license plate removed. PW2 recognized it to be her friend's car. The police officers seized the vehicle and drove it to Chilenje police station. She knew the traditional healer to be a Mr. Phiri and identified A 1 from the dock as the said healer. In Cross examination PW2 accepted that Clare's sister went to inquire about her sibling from her because they were best friends. She denied that she went with the deceased for any prayer meetings. It was when she and the people she was with were leaving A 1 s' house that they saw Clare's vehicle parked at the back of the house. f · It was her evidence that the keys for the vehicle were given to the police outside the house when the police interrogated A 1. The keys were in his undergarment. She denied being the one that introduced Clare to the traditional healer. She disputed the suggestion that she knew more than what she had told the court. She also disputed having had a hand in her friend's death. Jll ---------- She was not re-examined. 2.3 PW3 Maybin Mundenga a He informed the court that he is a colonel in the Zambia National Service. His evidence was that on the 12th of July 2019, he reported for duty in the morning. At around 13 hours, he called his wife Clare to inform her he would be working late. He asked her to wait for him so that they could have lunch together. He reached home (I around 13: 50 hours and the couple had their lunch together as agreed. His wife then informed him that she was supposed to go for prayers in the evening. She needed some money to buy wigs from Kamwala shopping mall before proceeding for her meeting. He remained at home preparing for the evening programme. His wife returned at around 16:50 and informed him she would be going for the prayers with her friend Astridah (PW2). She did not mention where the prayers were to be. At 17:00 hours, PW3 left for work. He attended the function he was scheduled to be at and returned home at 21: 50 hours. He noticed his wife's car, a Toyota vanguard was not home. He entered the house and went to the bedroom to check on her and did not find her. It dawned on him his wife was not at home. J12 ------- He called her mobile number but the phone was not reachable. He waited a bit longer and began losing patience as the time went by. He continued calling but the phone was still unreachable. He decided to call his wife's sister Nancy Namutenda and briefed her about his wife's no show. The sister called back later and told PW3 that she too had failed to reach her. The next morning at around 07:00 hours, he called the deceased's other sister to inquire if she had been to her house. He asked her to try and find out from Astridah (PW2) . The feedback he received was that PW3 denied having been with his wife. PW3 later met with his sisters in law and insisted that his wife had told him she was going for prayers with (PW2). He thus in the company of one of his in laws drove to PW2's house to confront her himself. She denied having been with the deceased . PW3 then decided to report the matter to Chilenje Police station. He went back to PW2's house in the company of the police this time. They picked her up and when asked where the friend had gone that she might be aware of, it took a bit of time before she finally led them to a house off great north road in Kabangwe area. He and another police officer remained at a distance before the house J13 whilst PW2, her mother and one other officer went ahead to the house. A short while later, the officer in his company was called and told to follow in the direction where the others had gone. As they were walking along he noticed to his right his wife's vanguard parked under a mango tree at a small blue house. He informed the officer he was with what he had observed. They entered the house and were shown the man who had the vehicle. The officers had a challenge to retrieve the car keys from him but eventually managed to do so. The police officers apprehended this man and took him to the car that PW3 was driving. There was also a woman who was found at the house that was ordered to accompany the officers. The officers questioned the gentleman whom he cam.e to know was Ibrahim Phiri where the owner of the vehicle was. He said that he did not know where she was. Quizzed why he was found with the vehicle, he said the deceased left it with him and used public transport to get back to her home. The woman found at the house started pleading with him to disclose where his wife was but he insisted he did not know. The officers then drove the Vanguard from J14 ----------~-~----- the house to Chilenje Police and Mr. Phiri was put 1n police custody. In the early hours of Saturday the next day, PW3 was called by the police and informed his wife was found dead in Kabangwe area. Later when the body was picked up, he was asked to go Chilenje police to identity some recovered items. He was shown a handbag, Chitenge material and pepper spray canister. He positively identified the items as belonging to his wife. He further identified the vehicle by its number plate which was also engrained in the side mirrors, by its colour and dent in the rear fender. In cross examination, PW3 testified that it was true that PW2 led the police straight to Al's house. He further confirmed that she was very sure where the house was. He didn't think she knew more than she was letting in at the time but only began to suspect so later. ti PW3 testified further that he could confirm that PW2 and his wife were good friends. 2.4 PW4 Mathews Chibamba The witness testified that on 14th July 2019 his Aunt who lives in Malaila village called at 05:00 hours in the morning to inquire JlS -, whether her son Saviour (A2) was in their area. He was awakened by his cousin Gertrude Phiri who told him that his uncle wanted to see him. He dutifully went to his uncle's house and was informed about his Aunt's call and inquiry. Details were that A2 was not at home and was being sought after by some people. Acting on this information PW4 and his uncle embarked on a search for A2 initially at a grandmother's house. They did not find him. They then went to one Winter Daka's home and found Saviour sleeping there. PW4 explained that Winter Daka is A2's young brother. Both are his cousins as their mothers are siblings. He explained further that Saviour was residing in Malaila village at the time with his mother. PW4 and his uncle picked him up and went with him to their grandmother's village. They later decided to take him to Kabangwe police. This decision was arrived at because the information received was that it was police officers that were looking for him and Kabangwe was the nearest police station. On the way there, a police land cruiser drove past them. It stopped at a layby and turned back to where they were. The officers in the Jl6 ---------~---~ vehicle picked up A2 placed him in handcuffs and drove off with him. In cross examination the witness testified that there was nothing peculiar about A2 sleeping at his brother's house. He denied the assertion that the uncle had disclosed that A2 called to say he was being pursued by the police or that he wanted to hand himself in to the police. He accepted that whilst they were going to Kabangwe police station, A2 walked freely and was not restrained by anybody. (t Re-examined pw4 testified that it was not surprising that he found his cousin sleeping at his brother house although he did not know why he spent the night there. The instruction received from his aunt was that they should apprehend A2. He did not know why. 2.5 PWS Amos Daka This witness testified that he is a landlord and resident in Malaila village in Chief Mungule's area. On the 14th of July 2019 at around 06:00 hours some police officers came to his house. They informed him they had apprehended Ibrahim Hussein Phiri who was his tenant. Mr. Phiri had been his tenant for about 10 months at the time. J17 ----------------------~---....-, The officers stated that they needed assistance to be taken to the village graveyard. According to the officers, they had interrogated Mr. Phiri who revealed to them he operated from the graveyard. As far as PW5 was aware, Al was a traditional healer dealing in traditional medicine. PW5 accordingly led the police to the graveyard using the van that they had come with. He explained that this is the main graveyard in Malaila village. {I He showed them where to park the vehicle and noted there were trye tracks on the road that looked fairly fresh . He recounted that Al's wife had accompanied the group . He showed the police the layout of the graveyard. One of the officers pointed at what appeared to be a dark figure he noticed in the grounds and when the entourage approached to establish what it was, they discovered the naked body of a woman. ti PW5 noticed her forehead was crushed and the wig she was wearing had been removed from her head and placed by her side. The officers present started taking photographs of the scene . They then left the graveyard and went to Chilenje police where he gave a statement. The body remained at the graveyard. J18 -, In cross-examination PWS agreed that people in Malaila bury their dead at the same graveyard. He further agreed that people also take others to the graves of their loved ones even after the burial. He testified further that the tyre tracks were on the road leading to the cemetery but there was no funeral that occurred in the village. He testified that whenever one does occur, word spreads in the village. 2. 6 PW6 Doctor Muchelenga Mchenga Adam (t, This witness testified that he is a forensic pathologist employed by the Zambia police service. He obtained a fellowship in forensic pathology from the University of Toronto and holds a Master of Medicine in Anatomical pathology, a Bachelor of Medicines, Bachelor of Surgery and Human Biology obtained from University of Zambia. At the time of his testimony, he had worked as a forensic pathologist for 3 years. His main duties include the conducting of ~ postmortem examination of bodies where the police suspect foul play. He testified that he received a body for postmortem examination which was brought to him by an investigations police officer. The body was identified to him by a relative. He asked the scenes of crime officer Mr. Chalikosa to lift fingerprints from the body. J19 Afterward PW6 took photographs of the body and carried out a toxicology examination to test for drugs and poisons in the blood. He observed that the body had numerous blunt impact injuries to the head. The skull was fractured and there was a screw driver that was lodged in the neck of the deceased. He concluded that the cause of death was blunt impact trauma to the head. PW6 also concluded that the screw driver in the neck must have been inserted after the death based on the fact that there was no observed bleeding in the injury tract. He went on to prepare a post mortem examination report and power point presentation to depict the ' injuries. He testified that there is a police camera in the police laboratory and a laptop that was used to generate the report and the photo album. Further that the camera and laptop were in good working condition and he is the only one that had access to the laptop. He identified and tendered in evidence the screw driver, postmortem report and postmortem album in court accordingly. It was PW6's further evidence that the investigators had concerns on whether or not the deceased had been sexually assaulted. PW6 therefore obtained vaginal swabs and his examination did not J20 ------- - establish any injuries on the genitalia. At the time of giving his evidence he had not received the results on the toxicological test. However based on his opinion the results of the test were non contributory to the death. He explained that the reason the test is done in homicide cases is to establish if the person was under the influence of alcohol. The test is done as a matter of procedure not necessarily that it establishes the cause of death. That in this case there is a physical description of vital structures in the brain which was the mechanism of death to the deceased. Because of this the results of the toxicological examination were inconsequential. In cross- examination PW6 stated he could not tell the time period after the death that the screw driver was inserted. He agreed that it was possible it could have been several hours after. 2. 7 PW7 Henry Chalikosa A detective sergeant based at Chilenje police station. His evidence was that he is a Scenes of crime officer trained at Lilayi police college and has worked in this capacity for 16 years. He recalled that it was Sunday the 14 th of July 2019 when he was picked up - from Olympia with information that there was a dead body that had been found in 10 miles in Chibombo area just after Kabangwe. He was in the company of 3 other officers. When they arrived at the scene at Maliala graveyard, they found the dead body of a woman who was stripped naked. The woman had sustained a big injury on the forehead and her slippers and part of her clothing were placed near the body. The only clothes she had on were a hoodie and a bra. The left side of her head was badly smashed in as well as the ear. He concluded the woman was killed from the scene as the cardigan she had on had a lot of blood on it with visible flakes of flesh. He also observed that there was a screw driver lodged through the woman's neck. PW7 further noticed the presence of vehicle skid marks at the scene. The team searched around the area with a view of unearthing any object that might have been used to inflict the injuries. Nothing was found. They picked up the body and took it to UTH mortuary. On the 16 th of July 2019, he attended a post mortem examination in the presence of 2 other officers. The deceased was identified to the pathologist by the relatives as Clare Namutenda aged 42 of Chalala Lusaka. {' J22 On 20 th July 2019 he and other officers were led to the reconstruction of the scene by 2 suspects being A 1 and A2. They led the police to 9 miles in Chibombo District. He informed the court that while driving along great North road heading to Chibombo around 9 miles area, Saviour Daka (A2) told the officers to turn to the right off the road. After covering about 800 meters, A 1 asked the police to stop the vehicle. All disembarked. A2 then led the way into a bush. After covering a distance of about 10 to 15 meters on foot a chitenge material was recovered under a tree. A2 unfolded it and in it a handbag and a pepper spray can were found . A2 then led the police to a point 5 meters further where they retrieved a pounding stick. PW7 labeled these points and marked the chitenge material. He also placed number tags on the handbag ~ and the pounding stick. They gathered the exhibits and went back to the vehicle. Afterward A 1 led the police to his resi,)ence about 2 km from the scene the exhibits were found, A woman found at his house identified the pounding stick as oner of the instruments that Al i" used to pound some herbs. J23 - From the residence, he and other officers were led to the graveyard by A 1 in company of A2 and to the exact point where the body of the deceased was picked. The suspects then led them to different places where it was suspected the number plates for the deceased vehicle were thrown away. They did not manage to find the plates and went back to the police station. He then compiled a photographic album based on what was captured when picking up the dead body and during the reconstruction of the scene. He identified the photo album and tendered it in as part of his evidence. He further identified Al and A2 by name from the accused doc and confirmed they are the ones that led the police. He also identified the pounding stick, chitenge material, pepper spray, and screw driver, black hoodie, and bra. When cross examined the witness acknowledged that he may not remember all the items of clothing that the deceased was wearing when her body was found. He agreed that it was possible for finger prints to be lifted from the recovered vehicle. He accepted that he had not brought any evidence of fingerprints on the vehicle or the pounding sti~k. He however disagreed that it amounted to negligence on his part. J24 He testified that it was not at every scene where fingerprints are lifted. Further that he was not involved in the recovery of the motor vehicle. He disputed the suggestion that the accused were beaten at the time they led the police to the recovery of the exhibits. When re-examined, the witness testified that he was led to the discovery of the exhibits by the Accused. He clarified further that the pounding stick has a rough surface so no finger prints could be lifted from it. {t 2.8 PWB Nancy Namutenda Her evidence was that the case before court involves her late sister Clare Namutenda Mudengo. Her knowledge about the case was that her sister left her house on the fateful day and did not return. Her husband reported her missing and called pw8 in the early hours of Saturday the 13 th of July 2019 to advice that his wife had not returned home. He later went and reported the matter to the police. She and other family members went to join their brother in law at the station and found that he had left with some police officers. They sat around the station to wait for news. No information trickled through until late afternoon when the officers returned with J25 • pw3 and also came with the vehicle that Clara had been driving. Her sister was not with them. The family continued to wait for news until late evening when they were advised to go and wait from home. The next morning she and other family members went to the police station. When they arrived they were asked to get on to a police vehicle that was heading to Kabangwe area. There were about 3 {t officers, 1 of the accused persons and 2 of her siblings that got onto the vehicle . On the way, a stop was made at a police station in Kabangwe and another suspect was picked up from the station. They then proceeded to the direction the suspects led them to. They we led to a graveyard where the vehicle stopped and everyone disembarked . The 2 suspects led the way to where they saw a dead body. It was the body of their late sister. Her sister had a wound on <8 her head and part of her eye. She had another wound on her neck. She further observed that her sister was partially dressed. PW8 covered her sibling's body with a chitenge that the family had with them. The crowd that gathered helped to lift her up to the police vehicle and the body was taken to UTH mortuary pending a postmortem examination. She identified the body to the pathologist. J26 When cross examined PW8 agreed that there was a crowd that had gathered when they arrived at the graveyard. 2. 9 PW9 Chaba Mulenga A detective inspector based at Chilenje police station. His evidence was that on the 13th of July 2019 whilst on duty he was summoned by the CI0. A gentleman he came to know as Maybin Kakoma Manyangu. (Pw3) was filing a report that his wife left home on the {I 12 th of July 2019 for prayers and did not return. He further explained that she stated she was going with a friend by the name of Astridah (PW3) who lived in Olympia. Acting on this report Pv/9 left with one Constable Kafwimbi for Olympia residential area to go and find out the whereabouts of the deceased from her friend. When asked, she refused ever having gone for prayers with the deceased but stated that at one time she had escorted her friend to see a traditional healer in Kabangwe area. PW9 asked Astridah to take them to see that Traditional healer and when they reached his house they were welcomed by his girlfriend whose names he could not recall. She ushered them into the house J27 and at that point was visibly trembling. She asked PW9 if the deceased had returned home. From the question posed, he gathered she believed him to be the deceased's husband. He played along and told her she did not come home. The lady then confirmed to PW9 that she saw the deceased at their house at 19;00 hours the previous night and that she had left with her boyfriend whom he came to know as Ibu Hussein Ibrahim Phiri. She further stated that the deceased also left in the company of her boyfriend's friend Saviour Daka popularly known as Loze. She further revealed that she saw her boyfriend driving the deceased's car the next day but it had no number plates. Within a short time A 1 arrived and when he saw there were people in his house he attempted to run away. However PW9 and other officers were quick to apprehend him and when confronted on where the deceased was, A 1 stated he did not know anything about her. PW9 further asked him where the car was on the strength of what his girlfriend had earlier revealed to them. He refused knowing anything about the vehicle. Whilst holding on to A 1, a key dropped from his waist. J28 The witness testified that the police established that the vehicle was hidden just behind his house and under a mango tree. It was further observed that it had no number plates. In spite of this discovery, Al still insisted he did not know where the deceased was but now stated that the car was given to him because of a K6000 debt that the deceased owed him for medication. PW9 then took Al to Chilenje police where he continued interviewing him. On the 14 th of July 2019 at around 03:48 hours, PW9 and Constable Kafwimbi left for Kabangwe with a view of apprehending the 2 nd accused person Saviour Daka. He was not found at his house . They later inquired from Al's landlord Mr. Amos Daka (PW 5) whether there were any graveyards around that area. He specifically asked this as the 1st Accused had during his questioning mentioned that he used to go to a graveyard in the area to fetch medicine . Further, at the time the vehicle was retrieved it had a lot of scratches on it suggesting that it had gone into a bush. He added that the scratches observed on both sides of the vehicle suggested to him that it passed through a narrow patch which was bushy. J29 Amos Daka informed him there were 2 different graveyards in the area. PW9 opted to start with the one that had lots of grass and trees. Mr. Daka arranged for a number of villagers to accompany them to embark on the search. The time was around 06:00 hours then. There were over 10 people present and they began their search of the grave giving each other a distance of a meter apart. PW9 noticed (I a dark figure from a distance. When PW9 approached he discovered that it was the body of a female which was partially naked and wearing a black top. The head had on opening slightly above the left eye which \Vas large enough to accommodate a fist and it also had broken bones. PW9 secured the scene and called the scenes of crime officer detective sergeant Chalikosa. He then rushed to pick him up to cover the scene. The 2 nd accused person was brought in by his elder brother after the discovery of the body on the 14 th of July. On the 20th of July 2020 the accused persons led a team of officers that included PW9 to Kabangwe area. Detective Chalikosa was also part of the team. They left for Kabangwe using a Zambia Police vehicle. When they arrived in J30 ■ Kabangwe Al sat in the front of the vehicle and instructed the team to turn to the right off the main road in the direction of a bush. After driving about 800 meters, he told the driver to stop. The officer's disembarked from the vehicle and started walking in the bush. At this point A2 was the one leading the team. The officers first discovered the position a handbag was thrown to. He testified that they did not know about this location until they were {I led to the bush. A 1 was also present at the time. PW9 testified further that the handbag was wrapped in a chitenge material. Inside the handbag was a pepper spray canister. The team was also led to the recovery of a pounding stick from the bush by A2. The pounding stick had traces of blood stains on it. He added that the items were recovered approximately 1. 5 km away from the graveyard. The officer identified and tendered in evidence the handbag, chitenge material, pepper spray, pounding stick, car key and the yellow screw driver that was found lodged in the deceased neck. He also tendered in evidence the upper clothing worn by the deceased that included a black hoodie and bra. Giving further evidence about the recovered vehicle PW9 testified that the motor vehicle was found behind Al's house parked under a J31 mango tree on the 13 th of July 2019. He described the car as Toyota vanguard silver in colour. He confirmed that the car belonged to PW3 the deceased husband. He identified and tendered in evidence the motor vehicle and white book accordingly. PW9 testified further that the value of the vehicle was K 150, 000 . PW9 later made up his mind to charge and arrest the 2 accused persons jointly for the subject offences. They both denied the (t charges. When cross examined he agreed it was not only tree branches that could form the scratches observed on the vehicle. He agreed that he had not presented any evidence by way of photographs to show what the car looked like before . He however insisted that the scratches on the car were very fresh and looked like a recent occurrence at the time. He insisted further that the car was not merely parked but hidden at Al's house. He accepted he had not given on inventory of the things that were found in the car but insisted the chitenge was not in the car. ------ a He agreed that the graveyard was not fenced. It was therefore possible that any member of the public could have driven to the graveyard and that any car could leave tyre tracks that were similar to the ones that were found. He confirmed he had not brought any evidence of fingerprints before the court. He further agreed that he had no evidence to confirm whose blood was on the pounding stick. He however maintained that there was no need for such evidence since the police were led to the discovery of the named exhibit by the accused. He agreed that he did not find A2 at his house. He testified further that he had not brought any phone records for the deceased covering the period she went missing. He did not consider it necessary to do so in light of the evidence he had gathered. Questioned further, PW9 testified that Astridah (pw2) led the police (i_n .. :• .\,. to the Al's house. In spite of this he did not suspect that she colluded with the accused in this case or consider her to be a suspect. He did not gather any information that the deceased and her husband had marital problems. He did not consider the deceased husband might be a suspect. J33 PW9 accepted that the 1st Accused did say that the deceased was picked up by a boyfriend from his house and that this was after the car had been left as a lien over an unpaid medical bill. There were approximately 5 officers present during the leading by the accused. He testified further that the police had not been to the scene before the recovery of the exhibits. He only knew about the place when the police were led there by the suspects. He denied ,(t having beaten the suspects during the leading. When re-examined, the witness testified that the car was hidden underneath a mango tree but it was impossible for it be scratched by that tree. The leading by the suspects was voluntarily done and they were not beaten at any point. That was the close of the prosecution's case. 3. Ruling at case to answer Having heard the evidence of the State I was satisfied that a prima facie case had been made out against both accused persons. I invariably found them with a case to answer and placed them on their defence. Both opted to give sworn testimony and called no witnesses. J34 4. Al's defence Al gave his names as Abu Ibrahim Hussein Phiri. He testified that he is a traditional healer. On the 12th of July 2019, he received a call from the deceased informing him she would be going to his home. This was around 09: 00 hours in the morning. He explained that the deceased was his client whom he had known for about 8 months. He had been treating her for a rash and she was therefore (t due to collect some medicine. At about 15:00 hours his friend Saviour Daka (A2) came to visit and the two sat to chat behind his house. The deceased arrived at about 17:30 hours driving a Toyota vanguard. She parked the car under a tree, the usual spot she preferred to park during her visits. He excused himself from his friend to attend to her. He gave her the medicine and she left. A 1 then went back to join his friend. 30 minutes later the deceased came back. Following behind was a Toyota Allion. He once again excused himself to attend to her. The deceased told him she was leaving the car and would be back to pick it up later as she was going off with her friend. This was not the first time she would leave the car with him. According to A 1, J35 sometimes she would leave the car saying she was going to check on her plot. From his recollection she had done so perhaps 8-10 times before. She left the car under a mango tree and got on to the Arion car parked along the road. In the car were a man and a lady. They drove off and Al went back to join his friend. They parted company at around 21:00 hours. The next morning there was no power when he woke up. A 1 decided to go and visit A2 at his house not far from his home. He didn't find him and was advised his colleague had gone for a funeral. He went back home and started chatting with patrons buying beer from his landlord's house. At about 14:00 hours he received a call from his wife telling him there were some visitors looking for him. He left the company he was with and went to his house . He found 3 people in the house. One of them was the deceased friend whose name he could not recall. The others were unknown to him. He knew Clare's friend who testified in court as pw2, because she would often come with the deceased to his home. J36 .. He greeted these people who proceeded to ask him where the deceased was. He told them that she had passed through the previous day and left. A 1 then excused himself to go to the toilet. On the way back to the house he saw a Mercedes Benz arriving. The occupants who were in the company of 2 police officers painted him out to the police. The officers apprehended him and asked him where the car keys for the deceased vehicle were. ,. (I He explained that she left the car with him and that she had said she would return for it later. Al and his wife were then taken to Chilenje police station. When asked again about the deceased whereabouts in the CID office, Al repeated what he had told the police earlier. At that point he had already given them the keys for the car. His explanation was not accepted and the police officers started beating and torturing him in the process injuring his right hand. Asked who he was with on the day, Al told them he had been with A2 having a drink. He was then put in cells. Around 9:00 hours, the police picked him up from the cells and continued with the beatings. He pleaded his innocence and was placed back in cells. J37 The next morning he was picked up and put on a van with 2 other officers who sat in the front. They left for Kabangwe police station where they found A2. A2 was also put on the same van. They set off from the station, passed the turn to his village and drove straight into a bush. They finally stopped at a graveyard where a lot of people had gathered. According to A 1, this was the 1st time that he had been there. The (fl police got them out of the van and walked directly to the place where the body of the deceased was found. He confirmed he knew who she was when asked. They were later taken back to cells at Chilenje police station. After 3 days, the police picked them up from the cells. They were put at the back of a van with 3 officers whilst 2 sat in front. They set out on a journey to an area Al was not familiar with and into the bush. Whilst there, Al was told to point to the ground. He did so and a photo was taken. Afterward, they continued to walk further into the bush under guard. A2 was told to point at something which was wrapped up and another photograph was taken of him doing so. J38 The police ordered them to un wrap the bundle and inside it was a handbag. It was wrapped in Chitenge material. The police then took a few steps forward and asked A2 to point to the ground and at a pounding stick. A photo was taken of this as well. A 1 and A2 were then taken back to the van and driven to A 1 's house. Once there, they found Al's wife going about her household chores. Al was told to point at the place the car was parked. He did ( I so and the police took a photo. They then drove to the graveyard they had visited days earlier. The officers made both accused point at all manner of things there and at the position the body was found as they took photographs. He categorically denied having led the police to the recovery of the exhibits. That it was in fact the police who took Al and A2 to the area. He further denied having been taking his clients to the graveyard in spite of his wife's assertion that he would do so. When cross examined A 1 insisted he had never taken any client to the graveyard. He further asserted he did not know he could dispute his wife's testimony whilst she was on the stand as he was advised to remain quiet by his lawyers. ,- He did not see the need to inform the police that the deceased was picked up in another vehicle by 2 people. He admitted hearing PW 1 state he had told the police the deceased left by bus . He did see the need to challenge that evidence. He maintained that the deceased left the car with him which was parked under a mango tree. He asserted that everything that PWl told the court about him was a lie. Her motive for this was that she had found him chatting with 1 I another lady that she assumed to be his girlfriend. He testified that the pounding stick was found not far from the handbag. Pressed further the accused admitted the handbag belonged to the deceased. He knew it was hers as she would come with it to his home during her visits. He denied that the pounding stick found was the one he used for pounding his herbs. He accepted that he did not tell the police about the car before they saw it. He further confirmed that at the time of its recovery, the vehicle had no registration plates. In further cross examination A 1 maintained that although the vehicle was parked behind his house it was not hidden and was visible from the entrance. He accepted though that it did not make sense that the police would inquire about the vehicle if it was visible from the entrance. He further J40 accepted having sent A2 to -leave the house keys with PW 1 who was at a neighbour's house on the night of the 12th of July 2019. He further testified that PW2 was not with the deceased when she visited on that date. He did not pay attention to the 2 people that picked up the deceased or the registration number of the vehicle they were using. All he could say about the vehicle was that it was black in colour 1 • and he informed the police about this . He accepted that he did not bring out this aspect of evidence in the cross-examination of the arresting officer. Asked about the several times the deceased left her car with him, A 1 testified that she would leave the car in between 10-13 hours and then walk to the road side with her friend. He never saw the mode of transport she would use or ask where she was going. He further did not bother to establish who would pick her up. (. Questioned further A 1 testified that the deceased never came back for her vehicle the last time she left it. He accepted that he did not call her to remind her to pick up her car. He further did not report to the police that a client had left her car at his house and did not J41 return for it. He further did not ask why the number plates were not on the vehicle when she parked it. When re-examined, A 1 testified that he was not given the opportunity to explain the issue of the 2 people that picked up the deceased. He told the police about this though they did not accept his explanation. He knew the handbag belonged to the deceased as she used to carry it all the time and had it with her during her last visit. He maintained that the car could be seen from where it was parked as there was no fence around the yard. He insisted that the deceased did not go by bus in in spite of what PW 1 said he had told the police . He did not call the deceased to inquire about the pickup of the car because he did not have talk time. He further did not inform the police because she would always eventually come to collect the car. 5. A2's defence In his defence, A2 testified that on 12 th of July 2019 he woke up early in the morning and did some gardening until 15:00 hours. He then went to see his friend A 1 at his house which was just behind J42 his. At around 17:00 hours, he left briefly and returned to Al's house at about 17:40 hours. At 19:00 hours Al gave him the house keys to pass on to his wife who was with her friends. He did so and returned to join his friend where they continued to chat until 21 :00 hours. He said his goodbyes and left. When he got home, his mother informed him there was bereavement in the family at an aunt's ~ place in 6 miles area. He left for the funeral and slept at his brother's house in ten miles. The following morning, he received a call from his mother. She told him there were some police officers who had come looking for him at his house. He then shared this news with pw4 and an uncle. He asked them to escort him to Kabangwe police station as he was curious to know why the police were looking for him. His uncle and cousin obliged and escorted him to the police station. Once there they inquired at the front desk and didn't find his name listed for anything. As they were leaving the police, they saw a land cruiser approach. In it were Al and 2 other officers in the rear. 2 other officers sat in the front. One asked if he was Saviour Daka J43 and he confirmed that he was . A2 was then handcuffed and put in the vehicle . The vehicle was driven towards Kabwe road and turned to the direction of the graveyard. When they reached the graveyard he noticed that a lot of people had gathered, The police officer who sat in the front then directed Al and A2 where to go. They disembarked from the vehicle and were led to a dead body. The body was wrapped in cloth and taken to UTH. A2 and his colleague were then taken to Chilenje police station and put in separate cells. He was later picked up in the night and questioned about who killed the deceased . He told the police he had no role to play in her death. He was subjected to beatings until he bled from his ears. The interrogation continued the next morning. 3 days later, the police picked up both accused and put them in the rear of a land cruiser. 3 officers sat with them in the rear of the vehicle whilst 2 were seated in the front. They drove along Kabwe road and branched off at some point into a bush. The vehicle stopped and they were told to disembark, J44 He proceeded to give a similar account as Al about the police leading them to the recovery of exhibits and making them point at the various i terns as photographs were being taken by one of the officers. He added that the police threatened to beat him if he did not unfold the Chitenge material where a handbag was found. After recovery of the exhibits they drove to Al's house where more photos were taken. They then drove to the graveyard where the • body was found and told to point at different points whilst photos were being taken. They were finally driven back to Chilenje police. He disputed that he had gone into hiding after the 12th of July 2019 and insisted that he was at a funeral. It was further not true that he and A 1 led the police to the recovery of the exhibits. They were at the back of the van the whole time and did not know where they were being taken. When cross examined, A2 testified that he was informed about the funeral by his mother. He left his home immediately after he was told as the funeral was not very far from his home. He admitted that his mother called at 06:00 the next morning to inquire about his whereabouts. He found nothing strange about her asking where he was in spite her having told him about the funeral. J45 He accepted that his uncle and cousin went to ask after him at his brother's house. He maintained that he informed them about the police looking for him. He agreed that his mother did call his cousin Mathews Chibamba (Pw4) and that it was her that told Mathews to look for him. He testified that he did not know the deceased . He just saw her vehicle arrive at A 1 's place. He further used to see the vehicle go to r'. Al's house frequently. He said he saw the vehicle arrive and left it there when he went to his house at 19:00 hours. When re-examined he testified that there was nothing odd about his being requested to take the keys to Al's wife. The vanguard was parked in the front of the house whilst both accused sat at the back of the house. rt 6. Verdict I have carefully considered the evidence before me. I have also anxiously read the submissions made by both parties and extend my gratitude to counsel for their industry in this regard. The accused face two offences. The first is Aggravated Robbery C/ S 294 J46 (1) of the Penal Code. To establish the comm1ss1on of the offence, the State has to establish that: 1. A person armed with an offensive weapon or instrument, 2. Or being in the company of one person or more persons, 3. steals anything, 4. And at the time of such stealing either immediately before or after uses or threatens to use violence, 5. In order to overcome resistance of the item being stolen or retained. From the above it can be discerned that the offence can be committed by a person acting alone whilst armed with an offensive weapon or instrument or acting in the company of another or more, uses or threatens to use violence in the process of stealing something from a victim to ensure their m1ss1on to steal is accomplished. In the second count murder is alleged. The offence is set out in Section 200 of the Penal Code cap 87 of the Laws of Zambia , defined simply as the unlawful killing of a person with malice aforethought. J47 Malice aforethought is defined in section 204 of the Penal Code in the fallowing terms: "204. Malice aforethought shall be deemed to be established by evidence proving any one or more of the Jo llowing circumstances: (a) an intention to cause the death of or to do grievous harm to any person, whether such person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably • cause the death of or grievous harm to some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) an intent to commit a felony; • (d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony . From the evidence before me I find as not in dispute that Clare Namutende is dead. Her body was identified by PW8 to the State pathologist. I further find that it is not in dispute that she died as a result of blunt impact trauma to the head. This was confirmed by the State pathologist/ postmortem report and by PW6 's detailed evidence. I entertain no doubt that she was killed and the person/ s J48 ..... that perpetuated the crime did so with malice aforethought. The photographic album exhibits photographs of the injury to the head and skull which had a gaping hole above the left eye. The authors of the crime went as far as embedding a screw driver in the neck of the deceased in their quest to literally finish her off. There can no doubt the intention was to kill or cause grievous bodily harm. What is in dispute which I am to resolve is whether the deceased's vehicle was stolen by the accused in circumstances of an Aggravated Robbery and secondly whether it was the accused that killed her. A recap of the evidence implicating the accused was firstly that given by PW l. She testified that she was cohabiting with Al and fell pregnant by him. She categorically denied being married to him and she had more or less left her parent's home and conceived without their blessings. She was needless to say both a competent and t compellable witness. No issue of her compellability to testify was even raised at trial. She confirmed seeing the deceased at Al's house on the 12th of July 2019. She knew the deceased as Al's client who would regularly come to their home for treatment. A 1 left for a while and she was left J49 with the house keys. Al returned later at 21 hours in the company of A2 and left again only to return home at around 03hours in the morning. She further gave damning evidence about A 1 driving the deceased vehicle the next morning on the 13th of July 2019 and what followed the arrival of the police and Al's subsequent apprehension. PW! was able to identify the deceased's handbag recovered by the police as she used to see it with the deceased and that she had it with her during her last visit to the house on the 12th of July 2019. She further identified the pounding stick recovered as the one that was in their house and used by A 1 to pound his medicines. I found this witness to be truthful and her testimony was unshaken 1n cross examination. I dismiss the assertion that she had cause to give false testimony. I further find credible the testimonies of PW7 and PW9 that the police officers were led by both A 1 and A2 to the recovery of the chitenge material, handbag, pepper spray can and pounding stick. The handbag, chitenge and pepper spray were identified as belonging to the deceased by her husband (pw2). JSO Objection was raised on the admissibility of the evidence of the leading on the premise that it was not voluntarily done. On authority of the case of Boniface Chanda Chola & others the people1 I found that evidence of leading of the police to a scene at which items of real evidence are recovered is admissible. On the facts before me, I am satisfied that Al and A2 did lead the police to the recovery of the exhibits. Further that the prosecution led • evidence of the role each of the accused played and that there was no demonstration of the commission of the offence amounting to a confession that would then necessitate this court conducting an inquiry on the voluntariness of such demonstration. The recovery of the exhibits is undoubtedly telling evidence as the pounding stick had blood stains on it which by all probability was the weapon used to inflict the fatal injury to the deceased head. It is connected to Al by the fact that pwl was able to identify it as belonging to their household and that he had in fact been using it to pound his medicines. Further the handbag was seen with the deceased when last at Al's house barely hours before she turned up dead. JSl A2 in particular played the leading role in leading the police to the recovery of the exhibits as confirmed in the photographs taken. He could not have done so if he did not take part in the crime. I dismiss the accused's assertion that they were the ones being led to the scene by the police. I am satisfied that the police had not previously been to the scene where the exhibits were recovered. The same is however not true of the evidence of leading to the grave yard. The evidence led was that the police had been there initially on their own with PWl and pw5 when the body was found. I would as such not consider the evidence that the accused led the police to the graveyard and to the precise point the deceased was found. The prejudicial effect would far outweigh its probative value so I exclude this evidence. There is evidence that the vehicle belonging to the deceased was found in possession of A 1 at his house. I do not accept his claim that the deceased left her car with him after being picked up by 2 unknown persons. The version about this pick up was just raised in defence which I therefore dismiss to be an afterthought. In the case of Donald Fumbela vs. The Peaple2-the Supreme Court observed that: J52 "Where an accused person raises his own version for the first time only during his defense, it raises a very strong presumption that the version is an afterthought, and therefore less weight will be attached to such versions" I also find futile an attempt to suggest as the Accused did, that they did not have an opportunity of challenging the witnesses. They were very ably represented by Learned Legal Aid Counsel who vigorously cross-examined all the witnesses based on their instructions and in their presence. Further, under the pain of cross examination A 1 could not explain why in spite having a phone he did not call the deceased to inquire the reason she had not returned to pick up her car or why it did not have license plates. Instead he took the car for a ride in the early hours and went out of his way to conceal the car behind the house under a mango tree. The fact that the car did not have number plates is indicative of an intention to conceal its ownership. I have no doubt that the intention of doing this was to permanently deprive the owner of the vehicle. I do not as such accept the version that the vehicle was left with Al in the manner and circumstances alleged by the accused. I J53 have already established that violence was used and in this case led to the death of the deceased. The defence through cross examination and their submissions suggested there was dereliction of duty on the part of the police in failing to lift fingerprints from the vehicle and the pounding stick. In the case of Robertson Kalonga v the People 3 the Supreme Court held that: "Failure to lift fingerprints is a dereliction of duty by police which raises a presumption that such fingerprints as they were did not belong to accused'' However this presumption is rebuttable and in the case of Gilbert Chileya v the People4 the Supreme court observed that: \ \ "If the evidence, without the technical evidence which the investigating authorities should normally provide is sufficient to support a conviction although there is an apparent dereliction of duty by the police that is of no avail to the defence." The arresting officer pw9 explained that it was not possible to lift prints from the pounding stick. Further that he didn't consider it necessary to do so on the motor vehicle in particular considering it JS4 was found in possession of Al. I would agree with this position and further find there was no dereliction of duty in this case. It is undisputable that there is no eye witness account of the robbery and the murder in this case. The evidence pointing to the accused in that sense can largely be considered circumstantial. It is trite that circumstantial evidence is admissible. In David Zulu vs. the people5 the Supreme Court settled the law in the following terms. "It is competent for a court to convict on the basis of circumstantial evidence, as it is to convict on any other types of admissible evidence. However, there is one weakness peculiar to circumstantial evidence; that weakness is that by its very nature, circumstantial evidence is not direct proof of a matter in issue but rather is proof of facts not in issue and from which an inference of a fact in issue may be drawn, It is therefore incumbent on a trial judge that he should guard against drawing wrong inferences from the circumstantial evidence at his disposal before he can feel safe to convict. The Judge in our view must, in order to feel safe to convict, be satisfied that the circumstantial evidence has taken the case out of the realm of conjecture so that it attains such a degree of cogency which can permit only an inference of guilt." The facts established can be summed up as follows: JSS l. The Accused were together at A 1 )s house when the deceased arrived on the evening of the 12th July 2019. 2. Al returned home at night at about 21 00hrs and was in the company of A2. They left together and Al only returned home in the early hours of the next. morning the 13th of July 2019 at 03 hours. 3. Al was seen driving the deceased car in the morning of the 13th of July 201 9 and was found in possession of the car the same day by the police. 4. The number plates for the vehicle had been removed and the car had scratches on it. 5. He had previously told his girlfriend (PWl) that he was working from the graveyard in Maliala village. 6. The body of the deceased was found on the 14th of July 2019 at the graveyard in Malia/a village. 7. Both accused led the police to the recovery of a handbag, chitenge and pepper spray can that belonged to the deceased and the handbag in particular was seen with her the day of her disappearance. They also led the police to the recovery of a pounding stick that had blood stains on it. J56 --, ' I ---. 8. The pounding stick was identified as belonging to A 1 household by pw 1 and was missing from the house. 9. A2 disappeared from his house on the night of the 12th of April 2019 the day after the incident and was taken to the police station by his cousin and uncle following a receipt of a report that police were looking for him. The above facts taken cumulatively, leaves it is open for me to infer that it was the accused persons who by common purpose killed the deceased from the graveyard using the pounding stick with the view of stealing the car from her. It is worth noting that Al is also caught up in the doctrine of recent possession. The Supreme Court in the case of George Nswana vs. The people6 considering the application of the doctrine stated the e following: "The inference of guilt based on recent possession particularly where no explanation is offered which might reasonably be true, rests on the observance of any reasonable likelihood that the goods might have charged hands in the meantime and the consequent high degree of probability that the person in recent possession himself obtained them and committed the offence. Where suspicious features surround the case J57 that indicate that the applicant cannot reasonably claim have been in innocent possession, the question remains whether the applicant not being an innocent possession, was the thief or a guilty receiver or retainer". In the case of Mambwe vs. The People7 the Supreme Court went further to state that: "The possessor of goods recently stolen may fairly be regarded as either the actual thief or else a guilty receiver. His possession raises a presumption; that of his guilty connection with any further crime that accompanied the theft such as theft or Robbery. However as to what time is near enough to be recent, no general role has been given. The period within which the presumption can operate varies according to the nature of the article stolen. Three months would be sufficiently recent for a motor vehicle. But for such articles that pass from hand to hand easily like a cell phone, one month would be a long time, but seven days would be sufficiently recent .... " The Supreme Court recognized that for the inference of guilt based on possession to be sustained, there must be no likelihood that the goods might have exchanged hands. Further that there should be no possibility that the accused might have come into possession of the stolen property otherwise than by stealing it. J58 ~ • In this case I find that he was actual thief of the car not that he was the guilty receiver. I do not accept the explanation given on how he found himself in possession of the car for reasons explained earlier above. There is no denying that he had the car with him barely hours after it was last seen with the deceased. On the whole, I find that the circumstantial evidence is so clear so as to take the case out of the realm of conjecture, leading to the only irresistible conclusion that it is the accused that killed the deceased and stole her vehicle. The State has thus proved beyond a reasonable doubt that Al and A2 jointly and whilst acting together did commit the offence of Aggravated Robbery C/S 294 (1) if the Penal Code and murder C/S 200 of the PC Cap 87 of the Laws of Zambia and I convict them accordingly. r-.._ -c;) Dated at Lusaka this ..... 2 .......... day of .90.k ... 2020. JUDGE J59