Court of Appeal acquits trader accused of molesting minor

Ahmad (middle) with his lawyer Datuk Seri K. Rakhbir Singh (left) and an unidentified man outside the courtroom following the decision on Monday (Sept 26).

KOTA KINABALU: The Court of Appeal has acquitted a Pakistani trader accused of molesting an underage female employee three years ago.

A three-member panel of Justices Datuk Hanipah Farikullah, Datuk Supang Lian and Datuk Hashim Hamzah unanimously allowed the appeal by 27-year-old Ahmad Imtiaz and overturned a 12-year jail sentence handed down by the Sessions Court.

In its decision on Monday (Sept 26), the Court of Appeal found that there was merit in Ahmad’s appeal, after hearing arguments from both the appellant and the prosecution.

The court also set aside the decision by the High Court that affirmed and upheld the conviction and sentence by the Sessions Court which found Ahmad guilty of the charge under Section 14(a) of the Sexual Offences Against Children Act 2017 after a full trial on Nov 4, 2019.

He was convicted of hugging the then-14-year-old girl, fondling her breasts, and rubbing his genitals against the girl’s posterior at a sundry shop in Penampang at 6pm on Feb 20, 2019.

This law provides a maximum jail term of 20 years as well as whipping on conviction.

Justice Hanipah said the quorum was of the view that there was a misapprehension of fact and law by the High Court judge which led to a miscarriage of justice against the appellant.

He added that the Court of Appeal held that in particular the material witness – a boy who was also a worker – was not called to give evidence and was also not listed as a witness to the defence.

Justice Hanipa said this was even though the investigating officer confirmed in cross-examination that the boy could be a material witness.

“Furthermore, we are of the view that the complainant’s evidence is inconsistent and thus, unreliable,” he added.

“On the totality of the evidence, we are of the view that the conviction is not safe. Therefore the appeal is allowed and the decision of the High Court Judge is set aside. The appellant is acquitted and discharged,” said Justice Hanipa.

Datuk Seri K. Rakhbir Singh, who represented Ahmad, had earlier submitted to the Court of Appeal that there was a crucial piece of evidence involving WhatsApp messages between Ahmad and the complainant.

He said this evidence should have been produced to show what exactly Ahmad had written to the complainant immediately after the alleged incident.

Rakhbir argued that instead of calling the girl’s sister, mother and sister-in-law to give evidence, the prosecution should have instead called a character called “Boy” who was present on the premises at that material time.

He contended that Boy, an independent person, was more important and relevant compared to relatives who were not present then.

Deputy public prosecutor Nahra Dollah appeared for the prosecution.

The case began at the Sessions Court here in March 2019, with the prosecution calling a total of seven witnesses and at the end of prosecution’s case, the judge found that it had made a prima facie case and Ahmad was ordered to enter his defence.

Ahmad gave evidence under oath and also called his brother and wife to give evidence as it was said they were present in the shop where the alleged incident took place.

However, the Sessions Court convicted Ahmad and sentenced him to 12 years' imprisonment on Nov 4, 2019, with two years of police supervision.

Ahmad then filed an appeal at the High Court here on Feb 8 this year but it was dismissed by the court. He subsequently made his final appeal to the Court of Appeal.

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