The conviction for murder was overturned due to insufficient corroboration of circumstantial evidence, violating Section 133A of the Evidence Act 1950 regarding a child's testimony.

[1] The charge preferred against the appellant in this appeal was as follows:

"Bahawa kamu pada 14 April 2007, jam lebih kurang 9.30 malam, di Kilang Sin Guan Huat, Jalan Perusahaan 3, Beranang, Kajang, di dalam Daerah Hulu Langat di dalam Negeri Selangor Darul Ehsan telah membunuh Nowshad (Passport Pakistan No AB9613051) dan oleh yang demikian telah melakukan satu kesalahan yang boleh dihukum di bawah s 302 Kanun Keseksaan ."

[2] The first trial judge who had conduct of this case had, between the period 22 October 2007 and 19 November 2008, heard sixteen of the prosecution's witnesses (SP1 to SP16). The evidence of SP16 was critical to the prosecution's case as that was the direct evidence upon which the prosecution's case rests.

[3] The learned trial judge's decision under appeal, of the prosecution having made a prima facie case against the appellant, then calling him to enter his defence, heard the testimony of another five witnesses (SP17 to SP 21). The evidence of SP18, Aziemah bt Abdullah (the appellant's wife, the complainant in this case) was the circumstantial evidence relied upon by the prosecution upon whom the trial court drew inferences as to the appellant's guilt.

[4] At the end of trial, after appraising all of the evidence before him, the learned trial judge's finding was that the appellant had failed to raise a reasonable doubt in his favour, recorded a finding of guilt, then imposed the mandatory sentence of death upon him. The appellant's appeal against conviction and sentence was subsequently dismissed by the court of Appeal upon affirming the decision of the High court Judge.

[5] In submissions before us the appellant's counsel confined himself to grounds 1, 3 and 4 of the Memorandum of Appeal. The appellant counsel's submission was that the learned trial judge had erred by not applying the correct principles in evaluating the circumstantial evidence in this case, and that it was necessary for the evidence of the child witnesses, (SP16 and SP17), to be corroborated in material particulars pursuant to s 133A of the Evidence Act 1950 of which there was none. It was also the appellant's case that the learned trial judge had erred in taking into consideration police report exh P46 against the appellant when there was no evidence to whom the mobile phone number referred to in this report was registered against.

The Evidence

[6] The evidence before the learned trial judge were these. The appellant at the material time was employed as a "Jaga" at Kilang Sin Guan Huat situated at the place specified in the charge. Likewise, the deceased person named in the charge, Nowshad, was also working as a "Jaga" at the same place.

[7] The complainant, the appellant's estranged wife, Aziemah bt Abdullah (SP18) was unable to contact Nowshad and also did not hear from him. SP18 went, on 20 May 2007, to Beranang Police Station to lodge a missing person's report. SP18 met Sgt Amir Fadzil b Mokhtar (SP6). SP18 testified that when she was at the said Police Station her mobile phone bearing number 016-97162020 rang. That call was from mobile phone number +60146600244, which, according to SP18, was the appellant's mobile phone and that the appellant told her that he had killed her lover and had thrown his body near the highway.

[8] SP18 then lodged police report Beranang/000631/07 [exh P46] as follows:

"Pada 20 Mei 2007 jam lebih kurang 12.45pm semasa berada di rumah seperti alamat diatas saya telah terima panggilan telefon daripada suami saya nama: Mohd Naki bin Yusuf (014-6600244) dari mana dia buat panggilan telefon saya tidak tahu. Beliau telah beritahu saya pada 14 April 2007 beliau telah pukul kawan saya nama: Nowshad, warganegara: Pakistan di kilang Sin

Guan Huat Jln Perusahaan 3 Kawsn Perindustrian 43700 Beranang Selangor. Dia juga beritahu telah bunuh kawan saya tersebut dan buang di tepi lebuh raya mana saya tidak tahu. Saya telah tidak nampak kawan saya tersebut dari tarikh 14 April 2007 hingga hari ini. Suami saya juga ada ugut