Suriyadi Halim Omar JCA:

[1] These two appeals, C-05-27-06 and C-05-94-05, are connected. They originated from criminal trial No. 45(46)-3-2004, where seven persons were charged for murder under s. 302 of the Penal Code read together with s. 35 of the same Code. All the accused persons in the above case are prison officers and personnel from Penjara Penor, Kuantan.

[2] At the trial, before the commencement of the submissions but still at the prosecution's stage, the learned Deputy Public Prosecutor (DPP) conceded that no prima facie case had been established against the sixth accused person, whereupon he was acquitted and discharged. At the close of the prosecution's case, after hearing the submissions of accused persons 1, 2, 3, 4, 5 and 7, the court only called the first accused person to enter his defence, and acquitted accused persons 2, 3, 4, 5 and 7. At close of the defence case the learned trial judge found that the first accused person had failed to cast any reasonable doubt on the prosecution's case and therefore found him guilty. He was accordingly convicted of the charge of murder and sentenced to death.

[3] Pursuant to the order of acquittal of accused persons 2, 3, 4, 5 (hereinafter referred to as respondents) and 7, the Public Prosecutor filed the notice of appeal against the acquittal, registered as C-05-94-05, whilst the convicted accused person, hereinafter referred to as the 'appellant' filed appeal C-05-27-06. Prior to this hearing before us, the Public Prosecutor, vide notice dated 26 December 2001, withdrew the appeal against accused person no. 7 (Ismail @ Mat Daud bin Ideris) hence leaving only the remaining four respondents of C-05-94-05. For the hearing of these appeals, the Public Prosecutor was represented by two deputy public prosecutors, namely, Encik Awang Armadajaya and Encik Saiful Edris.

[4] I decided to hear the appeals together as the facts are connected. The charge against the appellant and respondents reads as follows:

Bahawa kamu bersama-sama pada tarikh 1.3.2004, di antara jam pukul 4.00 petang hingga 7.00 petang, bertempat di Penjara Penor, Kuantan dalam Negeri Pahang, telah melakukan pembunuhan ke atas Mohd Shukri b. Mohd Yusof Kp No. 850404-06-5179, dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 302 dibaca bersama seksyen 35 Kanun Keseksaan.

[5] Briefly, the facts of the appeals are as follows.

[6] On 1 March 2004, Mohd Shukri bin Mohd Yusof (the deceased) a young man of 19 years, who at that time was under remand at the prison, attempted to escape from the Penor Prison at about 4.10pm. His attempt was discovered and the alarm was raised. At about 4.45pm ie, about 35 minutes later the prison authorities captured him in an area known as Zone Nenas, which is nearby the officers' quarters, and he was brought to the main gate of the prison through a football field. A few prison officers assaulted him at the main gate; thereafter he was taken to the Bilik Unit Kawalan Keselamatan Penjara (the prison lock-up) by a few prison personnel, including SP10 (Sopian Yadi bin Hamzah). SP10 testified that he brought the deceased to the lock-up and saw that the latter was uninjured when depositing him there. In fact the deceased replied verbally to his query as to why he attempted to escape. In other words, the deceased was conscious at that point of time.

[7] At about 5.20pm the appellant, being the officer in charge of the lock-up unit, had directed SP7 (Razali bin Fauzi), a subordinate officer of his, to escort the deceased to the lock-up. On the way to the room, SP9 (warden Khatijah binti Adam) cautioned the four prison wardens who escorted the deceased that he was her relative. Upon arrival at the lock-up room, the appellant ordered those wardens to leave him with the deceased with the exception of SP7. Thus, only three persons stayed behind in that lock-up, that is to say, the appellant, SP7 and the deceased.

[8] In the lock-up the deceased sat on the