The imposition of the death penalty is justified in cases of severe terrorist acts against national sovereignty, reflecting community abhorrence.

[81] In his grounds of judgment, the learned trial judge proffered the following reasons for acquitting the 30th accused:

"35.9. Capt. Mohd Haisan and Major Haizdar were not called to testify when, where, how and why the 30th accused was arrested by them or by the army. Based on the testimony of PW96 and PW91, the 30th accused was arrested because he was in the operation area and did not possess any valid identification document. Both of PW96 and PW91 did not have any personal knowledge and were not able to testify when, where, how and why the 30th accused was arrested.

35.10. The prosecution did not lead any evidence that at the material times the 30th accused was at Kg Tanduo or that he was one of the armed intruders at Kg Tanduo. He was not seen in the photographs in ID2(1- 50) taken at Kg Tanduo. There was no evidence that he took part in the skirmishes at Kg Tanduo or at Kg Simunul.

35.11. There was no evidence that he planned or prepared for war or participated or took part in the war or any war between the armed intruders and the security forces. There was no evidence that he waged war against the King or against the nation.

35.12. There was no evidence that he planned or prepared or participated in any terrorist activities or carried out any terrorist activities in Sabah or in the country. There was no evidence that he associated with the armed intruders at Kg Tanduo or had provided assistance or supplies or support to the armed intruders. There was no evidence that he was a member of a terrorist group.

35.13. The only evidence against him was that he was caught in the operation area without any valid documents. That did not make him to have waged war against the King or that he was a member of a terrorist group.

35.14. The prosecution had failed to make out a prima facie case against the 30th accused under ss 121 and 130KA of the Penal Code . He was acquitted, discharged and referred to the Immigration Department to be deported."

[82] We agreed with the findings and decision of the learned trial judge in acquitting the 30th accused of both charges. Both PW91 and PW91 could not confirm as to how and why the 30th accused was arrested as they had no personal knowledge of the arrest. No evidence was forthcoming to link the 30th accused with the intrusion at Kg Tanduo.

[83] It is clear to us that the prosecution's case against the 30th accused, being circumstantial in nature, does not point irresistibly to involvement in the offences with which they were charged.

[84] We were satisfied that the learned trial judge was right in holding that no prima facie case had been established against the following accused, namely the 7th, 8th, 9th, 11th, 12th, 15th, 17th, 21st, 22nd, 23rd, 25th, 29th and the 30th accused persons.

[85] In respect of the 24th accused, we agreed with the findings of the learned trial judge that the explanation proffered by him in his defence had succeeded in raising a reasonable doubt in the prosecution case.

[86] Having considered the appeal against acquittal by the prosecution and for the reasons aforesaid, we found no merit in the prosecution's appeal. Consequently, we affirmed the acquittals of the respective accused of the respective charges preferred against them.

Part II - The Appellants' Appeal Against Conviction Under Section 121 Of The PC

[87] This part of our judgment deals with the appeals by nine of the appellants, namely:

(1) Atik Hussin bin Abu Bakar;

(2) Basad bin Manuel;

(3) Ismail bin Hj Yassin;

(4) Virgilio Nemar Patulada @ Mohammad Alam Patulada;

(5) Salib Akhmad bin Emali;

(6) Al Wazir bin Osman;

(7) Tani bin Lahad Dahi;

(8) Julham bin Rashid; and

(9) Datu Amirbahar Hushin Kiram.

[88] At the trial, they were the 1st, 4th, 10th, 13th, 15th, 16th, 18th, 19th and 20th accused persons respectively. They had been found guilty under s 121 of the PC waging war against the Ya