PUTRAJAYA, Feb 28 — The Federal Court ruled that the injuries sustained by Universiti Pertahanan Nasional Malaysia (UPNM) naval cadet officer Zulfarhan Osman Zulkarnain, which led to his death, were not proven beyond a reasonable doubt to be ordinarily sufficient to cause death.
A three-judge panel, led by Chief Judge of Malaya Datuk Seri Hasnah Mohammed Hashim, stated that Zulfarhan had succumbed to his injuries 10 days after the assault, which took place between May 21 and 22, 2017.
“Based on a comprehensive analysis of the evidence, we find that the element of injury ordinarily sufficient to cause death has not been established beyond reasonable doubt.
“As such, the prosecution cannot rely on Section 300(c) of the Penal Code to prove the offence of murder in this case,” she said.
Following this finding, the court set aside the death sentences and upheld the 18-year prison terms imposed on former UPNM students Muhammad Akmal Zuhairi Azmal, Muhammad Azamuddin Mad Sofi, Muhammad Najib Mohd Razi, Muhammad Afif Najmudin Azahat, Mohamad Shobirin Sabri, and Abdoul Hakeem Mohd Ali for causing Zulfarhan’s death without intent.
Judge Hasnah, sitting alongside Federal Court Judges Datuk Nordin Hassan and Datuk Abdul Karim Abdul Jalil, emphasised that in a murder charge, a crucial element is whether the injuries sustained by the victim were ordinarily sufficient to cause death.
She noted that while this is a factual determination for the trial judge, expert testimony must be considered and given due weight.
“In this case, a key piece of evidence is the testimony of Prosecution Witness 6 (PW6), Dr. Salmah Arshad, who conducted the post-mortem examination on the victim.
“PW6 initially agreed with the prosecution that burn injuries or scald wounds sustained by the victim are ordinarily sufficient to cause death. However, in determining this factual issue, the court must examine PW6’s entire testimony alongside other relevant evidence to establish whether this element has been proven,” she stated.
However, Judge Hasnah noted that PW6 later modified her statement during cross-examination, clarifying that burns covering 30 to 50 per cent of the body could cause death but are not necessarily fatal.
“During cross-examination by the defence counsel, the witness agreed that third-degree burns do not automatically result in death. Notably, the prosecution did not address this aspect of PW6’s testimony during re-examination.
“In this regard, consideration must be given to the expert testimony of Defence Witness 19 (DW19), Dr. Rohayu Shahar Adnan, who contested PW6’s findings,” Judge Hasnah stated, adding that the conviction of the appellants for murder and abetment to murder (in the case of Abdoul Hakeem) could not be upheld.
Meanwhile, Judge Hasnah affirmed that the evidence established that the first to fifth appellants had deliberately caused injury by pressing a steam iron against Zulfarhan’s body and physically assaulting him.
This was corroborated by testimonies from Prosecution Witness 24 (PW24) Ahmad Senabil Mohamad and Prosecution Witness 25 (PW25) Mohd Syafiq Abdullah, both former UPNM students.
“The trial judge also found PW24 and PW25 to be credible witnesses. At the appellate level, we find no reason to interfere with the trial judge’s factual findings, as the trial court had the advantage of assessing the witnesses’ demeanour through direct audio and visual observation.
“Accordingly, the Court of Appeal’s decision convicting the appellants of murder is set aside. However, there is sufficient evidence to support a conviction under Section 304(a) of the Penal Code. As such, the court reinstates the sentence of 18 years imprisonment, effective from the date of arrest (June 1, 2017), under Section 304(a) of the Penal Code,” she ruled.
On July 23 last year, the Court of Appeal sentenced the six former UPNM students to death for the murder of Zulfarhan after allowing the prosecution’s cross-appeal to reinstate the murder charge under Section 302 of the Penal Code.
Previously, Muhammad Akmal, Muhammad Azamuddin, Muhammad Najib, Muhammad Afif, and Mohamad Shobirin were charged with Zulfarhan’s murder under Section 302 of the Penal Code, which carries a mandatory death sentence upon conviction.
Meanwhile, Abdoul Hakeem was charged with abetting the murder under Section 109 of the same Code, which prescribes the same penalty.
On Nov 2, 2021, the Kuala Lumpur High Court sentenced all six individuals to 18 years imprisonment after convicting them under Section 304(a) of the Penal Code for causing Zulfarhan’s death without intent to murder.
The former students, now 29 years old, were found to have committed the offence in a room at Jebat Dormitory, UPNM, between 4.45 am and 5.45 am on May 22, 2017.
Zulfarhan succumbed to his injuries at Serdang Hospital on June 1, 2017.
Speaking to reporters after the proceedings, lawyer Datuk Seri M. Ramachelvam, who was assisted by Ameerul Radzi Azlan in representing Muhammad Afif, stated that his client and the other appellants would serve only four more years of their prison sentence.
“My client’s family has apologised to the victim’s family for what happened,” said Ramachelvam.
During today’s proceedings, the other appellants were represented by lawyers Amer Hamzah Arshad, Datuk Hisyam Teh Poh Teik, Datuk Mohd Zamri Mohd Idrus, and Datuk Hazman Ahmad, while the prosecution was led by deputy public prosecutor K. Mangai.
The family members of the appellants were seen in tears as they embraced their children in the dock right after the decision was delivered. — Bernama
