Shaik Daud Ismail JCA:

This appeal is by the Public Prosecutor against an order of acquittal of the respondent for an offence of murder under s. 302 of the Penal Code. The respondent was charged in the High Court at Alor Setar for murder of one Muhiyaludin bin Jidun on 16 November 1995 at about 2.15am at a house No. 778 Lorong Kuda Kepang 4, Taman Ria, Sungai Petani, Kedah. At the close of the defence's case the learned judge held that the respondent had successfully shown that the killing was in self defence and thereby he held that the prosecution had not proved a case beyond reasonable doubt on the charge, and acquitted and discharged the respondent.

The facts of the case are that on 16 November at about 1.45am the deceased Muhiyaludin bin Jidun was a member of an anti-vice team from the Majlis Ugama Islam Kedah which raided house No. 775 Lorong Kuda Kepang 4, Taman Ria, Sungai Petani on suspicion of an offence of khalwat or close proximity, an offence under the Enakmen Kanun Acara Jenayah Syariah 1988.

During the raid, the respondent who was in the house, in trying to avoid detection and capture, climbed onto the roof of the house and jumped down at its rear in the backyard of house No. 777 and then climbed the fence into the area of house No. 778. At this juncture he was heard to say, "siapa rapat saya tembak" and immediately after a shot was fired which shot hit the deceased. The injured Muhiyaludin b. Jidon was taken to Sungai Petani hospital where on 26 December 1995 he succumbed to his injuries. A post mortem examination revealed that he died due to septic peritonitis, DIVC and multiple organ failure on account of his gunshot injuries.

At the close of the prosecution's case the learned judge found that the prosecution had proved its case beyond reasonable doubt, and called upon the respondent to enter his defence as charged. The respondent elected to give evidence on affirmation.

The respondent was, at the time of the alleged offence, an Inspector of Police attached to the Anti Secret Society division of Alor Setar Police, married with two children. Respondent testified that at about 8pm on 15 November 1995 one Cik Fauziah (SP14) phoned him at his office and requested that he help her to transport an exercise equipment from her mother's house in Alor Setar to her house at Taman Ria, Sungai Petani. When he got off duty around 11.30pm he proceeded to Fauziah's mother's house and together with the equipment and Fauziah herself, proceeded to Taman Ria, Sungai Petani. They arrived at her house at about 1am and Fauziah invited him into her house for a drink before he returned to Alor Setar. He complied. While he was in the sitting room he said he heard a commotion at the rear of the house he went to investigate but could not manage to open the rear door. He denied hearing anyone uttering the salam, a number of times and identifying themselves that they were from the Majlis Ugama as testified by the leader of the raiding team SP15 and another witness SP19. Respondent then said that he peeped out of the rear window and saw a number of people armed with wood and changkul. He said that he thought those people were local gangsters intending to harm him. He then locked the rear door from inside and decided to leave the house via the air well and onto the roof, which he did and while he was on the roof he heard people below shouting. "Itu dia, itu dia. Mana hang nak lari mana hang nak lari, mampus hang malam ini". He said he ran hither and thither on the roof and finally jumped down into the compound of house No. 777. When he landed he broke his heel but he still ran towards house No. 778 by climbing over a fencing of house No. 777. When he was in the compound of house No. 778, he said two men approached him and pushed him to the fence and a few other men also assaulted him. He tried to avoid the blows and the blows landed on the fence. He said at that time he felt his life was at stake and he shouted "police, police"