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Cop's acquittal set aside
Published on: Thursday, March 22, 2018

Kota Kinabalu: A police inspector's four years of freedom was short-lived when his acquittal on a charge of murdering a single mother in Keningau was set aside by the Federal Court on Wednesday.

A five-member panel chaired by Chief Justice Tun Md Raus Sharif, Chief Judge of Malaya Tan Sri Ahmad Maarop and Federal Court judges Tan Sri Zainun Ali, Tan Sri Azahar Mohamed and Tan Sri Wira Aziah Ali allowed the prosecution's appeal against the High Court's decision to acquit and discharge Ahmad Rizal Umar (respondent) of the charge in 2014 and set aside the decision of the courts below.

They ordered Ahmad Rizal to enter his defence under Section 302 of the Penal Code.

"Since the trial judge has retired, we order the defence to be heard by another judge," said Md Raus.

Ahmad Rizal was also ordered to be remanded pending the disposal of the case and his case was fixed for mention at the High Court on Thursday.

The apex court, in an unanimous decision, held that the courts below erred in failing to call Ahmad Rizal to enter his defence.

The court held that the courts below in deciding…attached too much weight on the issue of break in chain of evidence but failed to take into account adequately the cumulative effect of the circumstantial evidence – that the respondent has lodged a false police report as found by the trial judge; there was no sign of any break in the deceased's house; the respondent was the last person with the deceased at the crime scene; the photo fit as provided by the respondent was a fabrication; the injuries on the respondent was non-combative in nature; and the motive of the respondent.

Ahmad Rizal, 33, was freed by the High Court here on July 22, 2014 without his defence being called.

The prosecution had appealed against the High Court's decision on July 22, 2014 to discharge and acquit Ahmad Rizal Umar of the charge without his defence being called.

The Court of Appeal, on Jan 26, 2016, rejected their appeal and affirmed the order of acquittal and discharge by the High Court.

Rizal, 33, was accused of murdering one Kartini Borhan, 27, between 4am and 5am on Sept 29, 2011 in a house at Taman Adika in Keningau, an offence under Section 302 of the Penal Code which carries the death sentence on conviction.

Earlier, Deputy Public Prosecutor (DPP) Mangai Krishnan, in applying for the court to order Ahmad Rizal to enter his defence, submitted, among others, that there were no break in the chain of the exhibits and that the six prosecution witnesses testified as to the chain of evidence from the time they were collected and handed over to the chemist and later tendered in court.

Even though the physical exhibits were never produced in court during the trial, the identity of the exhibits were clear and there were no doubt on the matter, she added.

DPP Mangai also submitted that the trial judge and the Court of Appeal judges failed to appreciate the circumstantial evidence adduced by the prosecution and that, among others, the evidence were that there was no sign of any break in the deceased's house suggesting the killer was someone known to her; the respondent had a love affair with the deceased; the respondent had injured himself; the respondent had lodged a false police report.

She further submitted that the photo fit provided by Ahmad Rizal was a fabrication evidence as the alleged person based on the illustration by him to police could not be found and not exist.

The trial judge also had agreed that there are inconsistencies in Ahmad Rizal's police report, she said.

Ahmad Rizal's defence should be called for him to give probable reason for his presence at the crime scene at the material time and the reasons for his lies, DPP Mangai submitted.

Counsel Ram Singh, representing Ahmad Rizal, rebutted that the High Court and the Court of Appeal had taken into account on the issue of Ahmad Rizal's police report.

He added that there were no investigation by the investigating officer on the weapon used in the crime, on the issue of third party and break in the house.

Together with Ram were counsel Kamarudin Mohamad Chinki, Kimberly Ye and Aaron Mah.

Ahmad Rizal, who was in court, was in tears when he was taken out in police custody. - Jo Ann Mool

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