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Nurul Hada murder: Acquitted on grounds of insufficient evidence
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Fri, Oct 17, 2008
New Straits Times
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>PUTRAJAYA, MALAYSIA - Citing incomplete investigations and insufficient evidence, the Federal Court yesterday set aside the murder conviction and death sentence on a former security guard accused of murdering a 10-year-old girl four years ago. The accused, Mohd Abbas Danus Baksan, was spared the gallows but still has to serve a 20-year jail sentence after pleading guilty at the Johor Baru Sessions Court for raping Nurul Huda Abdul Gani.
Abbas, 52, had another reason to heave a sigh yesterday -- the 24 strokes imposed on him for the rape was also set aside due to his age as the law states that those aged 50 and above would be spared the rotan.
At the time of the rape conviction in 2004, Abbas was 48 years old, but he was not whipped as he had appealed against his sentence.
The Federal Court yesterday allowed Abbas' appeal on the grounds that the prosecution could not adduce sufficient evidence to implicate him in the crime.
Judge Tan Sri Zaki Azmi, who delivered the unanimous judgment, said there appeared to be a third person at the crime scene.
"Once it was proved that a third person was involved, it is not possible to conclude beyond reasonable doubt that it was the appellant (Abbas) who caused the death of the victim."
Zaki said the circumstantial evidence adduced by the prosecution did not irresistibly point to the guilt of Abbas.
"The investigation of the case was incomplete. There was a gap in the prosecution's case.
"The defence has to just create a doubt," he said, in allowing the conviction and sentence to be set aside.
Zaki sat with Tan Sri Alauddin Mohd Sherif and Datuk Abdul Aziz Mohamad on the three-man bench.
Nurul Huda was raped, sodomised and strangled at a Tenaga Nasional Berhad guardhouse in Kampung Pekajang, Tanjung Kupang, Johor, between 9.20am and 1pm on Jan 17, 2004.
Abbas was employed there.
In the course of submissions, deputy public prosecutor Mohamed Hanafiah Zakaria said evidence revealed that Abbas had cleaned the girl's body to erase any incriminating evidence against him.
He said Abbas opted for a lesser punishment for rape by pleading guilty to the charge but put the blame of murder on Suyaimi Mohd Zain and Jojo.
Suyaimi was made prosecution witness during the trial while Jojo's name was brought up during trial by the defence team.
Jojo was never produced in court as he was never located.
Hanafiah said Abbas' guilty conduct was demonstrated when he refused appeals by the villagers and police to search the crime scene.
It was reported that she had gone to a shop near her home on her bicycle. When she failed to return after several hours, a search was mounted.
"Police were allowed to enter the premises only after obtaining permission from TNB authorities.
"Circumstantial evidence points to Abas as the perpetrator of the crime as he was the only person at the guardhouse."
Earlier, Abbas' court-assigned counsel, Jagdish Kaur, submitted that the presence of a third party implied that Abas did not commit murder.
She said the defence during trial had suggested that Suyaimi and Jojo were also present at the time the murder was committed.
She said Abbas was jointly charged with Nurul Huda's murder with two others who were unnamed, but when the murder trial began at the High court, he was the only one in the dock.
"A thorough investigation would have shown the involvement of the other two persons."
Jagdish said the semen stain on a straw mat at the crime scene also pointed to the fact that it belonged to an unidentified male.
"It wasn't from Abbas or Suyaimi," she said.
After delivering judgment, Zaki praised Jagdish "for a job well done".
When submissions began on Wednesday, Jagdish in her opening remarks addressed the bench, urging them to be patient with her as this was her first appearance in the Federal Court.
Zaki had then assured her that the bench would give her leeway as this involved the life of a person.
Abbas, who is Tamil-speaking, did not seem to understand what had transpired in court.
After proceedings, a reporter explained to him what had happened. When he finally understood, he broke into a wide grin.
With one-third remission for good behaviour, Abbas can be released back into society by 2017.
On Aug 27, 2004, after a 21-day trial, the Johor Baru High Court sentenced Abbas to death after finding him guilty of murdering Nurul Huda. He had been on Death Row at the Kajang prison since then.
The Court of Appeal upheld the conviction on July 3, 2006 after which the bachelor appealed to the Federal Court.
TIMELINE:
Jan 17, 2004: Nurul Huda Abdul Gani, 10, is gangraped in the guard house of a Tenaga Nasional Bhd power station, barely 100 metres from her home in Kampung Pekajang, Tanjung Kupang, Gelang Patah. She dies while being rushed to a nearby clinic. Police arrest two men, Mohd Abbas Danus Baksan, 47, and Suyaimi Mohd Zain, 27, both drug addicts and hunt for a third suspect.
Jan 18: Police remand Abbas and Suyaimi for 13 days. Checks revealed Abbas had eight previous convictions, including for armed robbery. Police also come up with a photofit of the third suspect.
Jan 23: Police believe the third suspect sought in the murder, identified only as Jojo, has fled Johor.
Jan 26: Abbas is sentenced to maximum 20 years in prison and 24 lashes for raping Nurul Huda. He was taken to the magistrate?s court to be charged with her murder.
Jan 31: Suyaimi is released unconditionally, due to lack of evidence. However, he is re-arrested for involvement in violent crimes and detained under the Emergency Ordinance.
Feb 2: Police deny claims that Jojo, the third suspect,
was hiding in the mangrove forest at the Kampung Sungai Melayu coastal area in Johor Baru. The search was based on claims by several Kampung Sungai Melayu residents that they had stumbled upon a parang-wielding man resembling the photofit of Jojo.
April 23: Abbas requests for defence counsel when his case comes up for mention in the High Court. He is told the court will appoint a counsel for him as he could not afford to hire one.
Aug 19: Abbas told to enter defence after the prosecution established a prima facie case against him.
Aug 20: Abbas pins the blame on two other men, alleging that he only raped the girl but did not strangle her. By this time, Suyaimi is a prosecution witness. Jojo is still at large.
Aug 27: Abbas is found guilty of Nurul Huda?s murder and sentenced to death.
July 10, 2006: Abbas? appeal against his death sentence is dismissed by the Court of Appeal.
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