JUDGMENTBY: GOPAL SRI RAM JCA (DELIVERING THE JUDGMENT OF THE COURT)

GOPAL SRI RAM JCA (DELIVERING THE JUDGMENT OF THE COURT) The appellant was convicted by the High Court at Kangar on two amended charges under s 57(1)(a) and 57(1)(b) of the Internal Security Act 1960, respectively, for having in his control a Colt .38 Special revolver and seven .38 Special bullets. The weapon formed the subject matter of the first amended charge, while the ammunition formed the subject matter of the second amended charge. The trial of the appellant was conducted under the provisions of the Essential (Security Cases) (Amendment) Regulations 1975 (the ESCAR). The conviction of which we have spoken a moment ago resulted in passing of the mandatory sentence of death upon the appellant. Against this conviction, the appellant appealed to this court.

We heard this appeal on 7 August 1995. At the conclusion of arguments, we allowed the appeal and acquitted the appellant. We now give the reasons for our decision.

The brief facts as revealed during the prosecutions case are as follows. On 1 September 1988, the appellant was being held in custody at the Alor Setar police station. On that day, at about 2.05pm, the appellant was interrogated by an Insp Zamri (PW1). No evidence was adduced in the court below as to why the appellant had been taken into custody or to what purpose the interrogation was directed. The only evidence on the point is that of PW1 who merely said that the OCPD, Alor Setar had entrusted him with the responsibility of interrogating the appellant.

According to PW1, the appellant, while under interrogation, made a statement concerning the whereabouts of the weapon and ammunition in question. It is common ground that no caution of any sort was administered to him before he made that statement. However, the record does show a reference, at a very early stage in the proceedings, by the learned deputy who appeared at the trial, to s 27 of the Evidence Act 1950 and to reg 23 (we believe that the learned judges note should read as reg 21) of the ESCAR. This was in response to the objection taken by defence counsel to the admissibility of statements made by the appellant during the interrogation. We shall deal with this aspect of the case at some length later in this judgment

Later, PW1 recorded this statement in a diary. It was not his official diary. He wrote it on the page reserved for 30 January 1988, not1 September 1988. The learned judge reproduced the whole of that entry in his judgment. In view of its importance, we shall do likewise. This is what PW1 wrote:

Saya keluar penjara tahun 1986 selepas saya melakukan kes dengan

bersenjatakan pistol dan pecah rumah di kawasan Alor Setar, Jitra dan

pistol yang gunakan masih ada saya simpan di Hutan Aji, Perlis di tepi

sebuah sungai ditutup dengan rumput dan saya akan tunjuk nanti.

This record of what the appellant is supposed to have said to PW1 was produced as exh P2. At that stage, the learned deputy conducting the prosecution informed the learned judge that there were several words in exh P2 which were prejudicial to the appellant and applied to expunge these. That application was granted by the learned judge. We refrain from making any comment upon the correctness of the order made by the learned judge since the approach that we have taken in this appeal renders it unnecessary for us to deal with this aspect of the case.

We now return to the narrative. PW1 concluded his interrogation of the appellant at about 3pm. At about 3.30pm, PW1 proceeded to the place mentioned by the appellant. He was accompanied by the appellant and seven other police personnel. These included the police photographer Police Constable Thajmi (PW3) and Police Constable Mat Akhir (PW2).

On arrival at the scene, the appellant led PW1, PW2, PW3 and a Sergeant Omar to a place approximately 5m from the place at which the van in which they had travelled was parked. PW1 then instructed PW3 to take

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