The Court of Appeal, sitting in Lagos, on Friday discharged and acquitted Major Hamza Al-Mustapha, who was sentenced to death over the conspiracy and murder of Alhaja Kudirat Abiola on June 4, 1996.
Justice Mojisola Dada of a Lagos High Court had on Jan. 30, 2013, sentenced Al-Mustapha and Lateef Shofolahan to death by hanging over the murder.
Al-Mustapha was the former Chief Security Officer to the late Gen. Sani Abacha, while Shofolahan was an aide to the late Kudirat Abiola.
Justice Rita Pemu, who read the lead judgment, said that the prosecution totally failed to establish the charge of conspiracy and murder against the appellants, including Shofolahan.
She said that it was foolhardy and unreasonable for the lower court to have so swiftly convicted the appellants, when it was very evident that the prosecution had a bad case.
Pemu held that there existed huge shadows of doubt in the case of the prosecution, which ought to be resolved in favour of the appellants.
“In a criminal trial, the burden of proof is beyond reasonable doubt and this is a chain that cannot be broken.
“The prosecution listed four witnesses PW 9, 10, 11 and 12 as witnesses, which it intended to call in the trial, but never called any of them.
“PW 1 (Dr Ore Falomo) testified before the lower court that the bullet extracted from the forehead of the deceased, was white and of a special kind, but the prosecution failed to tender the bullet as an exhibit and this is fatal to their case.
“The prosecution also called PW 4 (Investigating Police officer) who investigated the death of the deceased, but this witness was never produced for cross-examination by the defence, as he never showed up in court.
“This renders the evidence of the police officer inconclusive as it denied the defendants their right to a fair hearing, and no reasonable court can safely make a conviction on such inconclusive testimony.
“PW 2 (Sgt. Rogers) and PW 3 (Mohammedd Abdul) in their confessional statements to the police said they were enjoined by the first appellant, to murder Kudirat, but this statement was later retracted by them in court.
“PW 2 and PW 3, in retracting their earlier statement to the police, told the court that they were cajoled by the prosecution to indict the appellant, with a promise to give them monetary compensation.
“This is a contradiction in the testimonies of the witnesses, it raises doubt in the case of the prosecution, and it is unimaginable that the lower court did not expunge this evidence.
“For an offence like murder, I wonder why the Nigerian police did not do a proper investigation.
“Jabila, who was initially arrested as a co-defendant, was later called a prosecution witness; witnesses who ought to be called were never called, the bullet extracted was never tendered before the court.
“Once there is doubt in the case of the prosecution, as in the instant case, it must be resolved in favour of the accused, and this doubt is accordingly resolved in favour of the appellants,’’ Pemu said.
According to her, it is clear that Kudirat was shot, but the question is: who pulled the trigger?
“I find nothing in this case which sufficiently links the appellants with the commission of the offence.
“It is preposterous that in a 326-page judgment, the lower court was only concerned with securing a conviction at all costs.
“Just as God is no respecter of persons, so also is this court. I hereby order that the appellants be discharged and acquitted, while the conviction and sentence of the lower court is hereby discharged,’’ she said.
This judgment was assented to by Justice Amina Augie and Justice Fatima Akinbami.
The convicts were arraigned in October 1999 on a four-count charge bordering on conspiracy and murder.
Dada had found them guilty of the offence, and had accordingly convicted and sentenced them to death by hanging.
Counsel to the appellants, Mr Joseph Daudu (SAN) and Mr Olalekan Ojo, had, however, appealed against the judgment.
They argued that the trial court erred in law to have based its judgment on the testimonies of PW1 and PW 2, (Barnabas Jabila and Mohammed Abdul).
The evidence, the defence argued, were contradictory, and left out areas favourable to the defence.
Counsel to the respondent, Mr Lawal Pedro (SAN), had urged the court to dismiss the appeal and uphold the judgment of the lower court, arguing that the appeal lacked merit.
He said that apart from the evidence of PW 1 and PW 2, there were other evidence from the defendants themselves, which supported the counts of conspiracy and murder.
