CULLINAN, J.S.:I have had the advantage of reading the judgment delivered by the learned president of the court and wish to state that I agree with all that he has said, save that whilst I agree that the learned trial judge was justified in finding that the appellants' explanations of their non-association with the stolen vehicle could not, on the issue of credibility, reasonably be true, I do not agree that he was thereafter justified in finding that the only reasonable inference was the appellants' guilt of the offence charged.
The learned counsel for the appellants Mr Sigera submitted that on the evidence the court could draw an inference of receiving, or of theft subsequent to the robbery. In the case ofChileshe v The People (4), this court had occasion to consider the inferences which might reasonably be drawn from the possession of stolen property. The court (per Gardner, J.S.,) referred to the case of Andreas Obonyo (5), and went on to observe (at pages 178179):
"In that case the Court of Appeal of East Africa in dealing with a case of murder held that it is the duty of a trial court, in cases where recent possession of stolen property may lead to the conviction of the accused, to consider whether such recent possession may be the result of the receiving of stolen property as opposed to guilt of the major crime during the commission of which the stolen property was obtained. This general principle, with which we respectfully agree, has been set out by the Court of Appeal in Zambia in the case of Banda v The People (6) where Blagden, C.J., said:
' When, in a case involving theft, the evidence against the accused is that he was found shortly after the theft in possession of some of the stolen property, the magistrate should give some indication in his judgment that he has given consideration to the possibility that the accused might have come into possession of the stolen property otherwise than by stealing it. In some circumstances - as, for instance, where the time elapsing between the theft and the discovery of the the property in the accused's possession is extremely short -there is hardly any need to make any reference to this since the inference that the accused is the actual thief may be quite inescapable. Nevertheless, magistrates should take care
in these cases of 'recent possession' to show in their judgment that they have understood and correctly applied what commonly called the doctrine of recent possession.'
This dictum does not of course go so far as to say that it would be a misdirection in every such case if no indication were given in the judgment that the possibility that the property came into the accused's possession otherwise than by commission of the offence charged had been considered. This is explicit in the reference by Blagden, C.J., to circumstances where the inference that the accused is the actual thief may be inescapable. In that case the only issue was one of time but there may be other factors which preclude as a reasonable possibility that the accused is a receiver only. For instance where the articles are of such a nature that one would not expect them to be bought by a receiver. There may also, in particular cases, be other circumstances which preclude the need to look for such an explanation."
Again, in the case of Kabwe v The People (7), this court observed (per Gardner, J.S.) at page 194:
"In the case of Chileshe v The People (4) we referred to the necessity to consider the possibility of the true explanation being that of receiving stolen property and in particular cases there may be other inferences which must be considered. "
In the present case the stolen vehicle was found the following morning some five to ten kilometres south of Kabwe, on a side road not far off the main Great North Road. In view of the relatively short time which had elapsed since the robbery and the fact that the vehicle had no petrol therein, it is reasonable to infer that the robbers had driven the stolen vehicle north from Lusaka, in which direction they headed after the robbery, and had run out of petrol en route. I do not see that it is reasonable to infer that the appellants were guilty receivers of the vehicle. Had they received it, it is unlikely that they would have taken it on the open road with insufficient fuel to reach their final destination. Again, it is likely that they would have been in possession of the keys of the vehicle. Furthermore, having received a stolen vehicle it is unlikely that they would commence to change the registration numbers on the vehicle on the open road, rather than in the presumably relative safety of the place of receipt.
There is however the inference of a subsequent theft to be considered. The translation of the first appellant's statement in the vernacular, rendered by the court interpreter, indicates that he gave some assistance to the bus staff in trying to effect repairs to the wheels of the bus. One police officer, PW1, admitted in cross-examination that there was oil on the hands of the first appellant and that the second appellant's clothes were dirty. I hardly think that such evidence is consistent with the removal of two figures from the registration plates of the stolen vehicle: at least it is more consistent with the removal of wheels from a heavy bus. Further as I have pointed out, the appellants were not in possession of the keys of the vehicle. When approached by the police they claimed that the
vehicle belonged to the second appellants elder brother named 'Daka' - having no doubt already seen that name, that is the complainant's name, in the blue book found in the motor vehicle. As it was their story that they had lawful possession thereof it is not reasonable therefore to infer that they deliberately discarded the vehicle's keys: indeed the failure to produce the keys might point to their guilt in the matter. While it is reasonable to infer that they were the robbers in question, and had genuinely lost the keys when they went to get petrol, it is also reasonable to infer that they never possessed such keys. In other words, it is reason able to infer that when the vehicle ran out of petrol the robbers decided to abandon the vehicle, taking with them the keys thereof: thereafter the appellants, engaged in the efforts to repair the bus, chanced to observe the apparently abandoned vehicle nearby and decided to appropriate it: the act of putting petrol into the vehicle accompanied by their false story to the police constituted an act of conversion with the necessary animus furandi. The fact that they must have covered a return journey either on foot or by lifts from passing motorists, in order to purchase the petrol, indicates an intention which goes beyond a temporary appropriation for the purpose of transport.
It can be said of course that the appellants never raised such defence. To have done so however would have exposed them to a conviction for theft. This court (per Baron, D.C.J.) said in Bwalya v The People (8) at page 232:
". . . a man charged with an offence may well seek to exculpate himself on a dishonest basis even though he was not involved the offence."
Again in the case of Kape (7), the court (per Gardner, J.S.) had occasion to observe at page 194:
"Whatever the reason, the lie told by the appellant in court does not inevitably lead to an inference of his guilt. In R. v Turnbull (9) at page 553 the Court of Appeal dealt with lies relating to alibis as follows:
' Care should be taken by the judge when directing the jury about the support for an identification which may be derived from the fact that they have rejected an alibi. False alibis may be put forward for many reasons: an accused, for example, who has only his own truthful evidence to rely on may stupidly fabricate an alibi and get lying witnesses to support it out of fear that his own evidence will not be enough. Further, alibi witnesses can make genuine mistakes about dates and occasions like any other witness can. It is only when the jury are satisfied that the sole reason for the fabrication was to deceive them and there is no other explanation for its being put forward, that fabrication can provide any support for identification evidence. The jury should be reminded that
proving the accused has told lies about where he was at the material time does not by itself prove that he was where the identifying witness says he was.'
In our view this consideration applies to any lie told by an accused where it is reasonably possible that he is lying for a motive which is consistent with his innocence."
I appreciate that the inference which I have considered points to the appellants' guilt and not their innocence: it points however to their guilt of a lesser crime and their innocence of the major crime charged.
I quite appreciate that the court cannot speculate upon the defences available to an accused person: there must be some evidence of a specific defence. In the application of the so-called doctrine of recent possession however that is merely another way of saying, as the court did in Kape (7) that,
". . . in particular cases there may be other inferences which must be considered."
Those inferences of course must be reasonable inferences, that is inferences which find some support in the evidence before the court. That approach, as I see it, does not permit of speculation. In the present case while that part of the first appellant's explanation that he, and apparently the second appellant, were passengers on the bus from Lusaka might reasonably be true, both appellants in denying association with the stolen motor vehicle in effect failed to offer any explanation for their possession thereof. In the Court of Appeal case of Maseka v The People (10), Baron, J.P., (as he then was) observed at page 13:
"I would emphasise one point which is all too frequently not appreciated: even in the absence of any explanation, either at an earlier stage or during the trial, the inference of guilt cannot be drawn unless it is the only reasonable inference to be drawn from all the circumstances."
In the present case there is the evidence of the first appellant and his statement to the police, indicating that he and apparently the second appellant were passengers on the bus from Lusaka. There is the evidence of the oil on the first appellant's hands and the dirt on the clothing of the second appellant to support the first appellant's statement to the police that he and others assisted the bus staff in trying to effect repairs to that vehicle. In particular there is the odd coincidence that neither appellant possessed the keys of the stolen vehicle. That evidence to my mind is sufficient to raise a reasonable inference that both appellants subsequently appropriated the abandoned stolen vehicle. I agree that it is also reason able on the evidence to infer that both appellants robbed the complainant of the vehicle. I do not agree however that that is the only reasonable inference to be drawn. In my view the situation could be summarised by saying that the only reasonable inference to be drawn is qualified one, namely that the appellants in the least subsequently stole the vehicle.
The learned trial judge's judgment does not disclose whether he considered such inference and I can make no assumptions in the matter unfavourable to the appellants. I am not satisfied therefore that the learned trial judge did consider such inference and I am further not satisfied that had he done so he would inevitably have rejected it as being unreasonable. I consider therefore that it would be unsafe to allow the convictions, on the major offence charged, to stand. I would allow the appeals, quash the convictions and substitute therefore a conviction for the relatively minor offence of theft of the complainant's motor vehicle, in respect of each appellant.