Kuwait's first terrorist victims

My friend was murdered in Kuwait and the local authorities did absolutely nothing for him, as usual, it was all about saving face.



On October 10th 2001, Canadian Luc Ethier and his Filipina wife Mary Jean Bitos were shot in the street of Fahaheel by an extremist. Luc died and Mary Jean sustained critical wounds that nearly took her life as well. At the time, we all believed that the Criminal Investigation Department and the State Security Department would do their best to find the killer. Instead, after Mary Jean recognized Majeed Al-Mutairi from police records, they turned against her and fabricated a case against the victim and five other Filipino nationals.

Even though the prosecution wrote a 120 page report formally accusing Majeed Al Mutairi of murdering Ethier for political motives, Al-Mutairi was released due to tribal and political pressure. As if that was not enough, Al-Mutairi’s lawyer Nawaf Sari Al-Mutairi went above the whole justice system to the national assembly and requested the Evidence Department be segregated from the prosecution. In my opinion, it shows how desperate he was to get rid of some incriminating evidence against his client.

What really got to me besides losing my friend is the fact that some political figures attended a gathering organized to celebrate Majeed Al-Mutairi's release during which he was lauded as a hero. I am still outraged at seeing the pictures of Al-Mutairi celebrating with National Assembly Speaker Jassem Al-Khorafi which were plastered all over the local newspapers.

Majeed Al-Mutairi and National Assembly Speaker Jassem Al-Korafi

Meanwhile, SSD Brig. Gen. Jassem Al-Kandari and CID Lt. Mahmoud Al-Ajelan had arrested five Filipinos (two men and three women) and forced them to confess to the crime so they could let Al-Mutairi off the hook without raising too much suspicion.

As Court of Appeal records show; Lt. Al-Ajelan told presiding Judge Salah Al-Fahad that he had kept Teddy Tomaro in jail more than four days (ten days) without an arrest warrant because he refused to confess!!! Teddy Tomaro, Jymmy Binuya, Noraiza Talib Esick, Rosalia Baclig and Delore Esperitus claimed they had been tortured until they agreed with the confession. Also, Mary Jean Bitos claimed that she was threatened by the police while she was still recovering in her hospital bed. “They told me they would never let me go back to the Philippines if I accuse Majeed Al-Mutairi and didn’t agree with Tomaro’s confession.

What happened after is not much better. After they were acquitted by the Court of Appeal, Bitos and Tomaro were kept in jail illegally for two and half months. On April 1st 2003, 17 months after they were wrongly accused, the Court of Cassation also agreed to their innocence. Even after they were found not guilty by all levels of the justice system of this country, they were simply kicked out of Kuwait like rubbish. No apologies, no compensation, nothing. They were deported to the Philippines and blacklisted. Once again, the rule of law was ignored. According to the Constitution of Kuwait, you are considered innocent until proven guilty by a court of law. If this is true, why is the Ministry of Interior treating them like criminals even after being acquitted by the court of law?

Also, following the verdict of the court of cassation, the Canadian government requested the reopening of the investigation to get justice for Luc Ethier. It has been over two years now and still; the Kuwaiti government is ignoring the formal requests made by Canada.

Ironically, Majeed Al-Mutairi was rearrested earlier this year in connection with the shooting between the Lions of the Peninsula and the police forces and still, Kuwait continues to deny the obvious.

What this terrorist did was wrong but what the Ministry of Interior did with this case is even worse. Not only did they let the killer go free, they also used innocent people to cover up the truth in a failed attempt to prove there were no terrorists in Kuwait.

A year ago, the Ministry of Interior issued a statement that denied allegations that the State Security had tortured the suspects held in connection with the insurgency in Iraq. The statement also expressed pride in the work that was carried out by the Ministry’s personnel in ensuring the safety of the public while upholding the rule of law. It also avowed that the Ministry would abide by the articles of the Constitution and principles of universal human rights.

After reading such a statement, I couldn’t stop recalling everything the Ministry’s employees haven’t done for Luc and Mary Jean. Obviously, they failed miserably to ensure Luc and Mary Jean’s safety and they did everything but uphold the rule of law and abide by the articles of the Constitution as well as the principles of human rights. It really makes me wonder if the Interior Minister is fully aware of what is going on in his own Ministry. I wonder if he knows that some of his employees wrote 300 pages of false statements for the court when they fabricated the case against Mary Jean and by doing so, they committed perjury which is a crime punishable by law. I wonder if he is aware that when some of his Ministry’s employees diverted the investigation against innocent people they obstructed justice which is also a crime punishable by law.

In Luc’s case, I really wish the Interior Minister had those Ministry employees investigated and prosecuted for abusing the power they were entrusted with and for committing these illegal acts in their official capacity. Lately, we have heard a lot about the importance of fighting corruption and the fact that no one is above the law. Citizens and residents have been asked to help by reporting any illegal act by those who are abusing their power. Also, every once in a while we read about some official who pretends having an open door policy to help people with their problems. Reporting such illegal acts to the proper ministry is exactly what I have been doing for the past three years but nobody is willing to do anything about it. Unless some people turn their words into actions, corruption and abuse of power are here to stay!

When I look back at what took place during this case, I’m so disappointed at the behavior of some individuals who have absolutely no respect for other human beings. The way they just used six innocent people without scruples and then get rid of them like nothing was wrong is beyond belief. All this to protect a criminal and save face!! The Ministry of Interior is supposed to protect the innocents and punish the criminals; not the opposite.

My friend Luc was a Gulf War veteran, this country pinned a medal to his chest after the liberation of Kuwait. I thought this medal meant respect, honor and recognition from Kuwait but not anymore. If I had one, I would just give it back because I can’t accept the way my friend was disrespected, dishonored and disavowed by Kuwait.

The Court of Appeal ruling

( Translation from the Arabic version)

In the name of God, the Most Merciful, the Most Compassionate
State of Kuwait
Ministry of Justice
Court of Appeal
In the Name of His Highness the Amir of Kuwait
Sheikh Jaber Al Ahmad Al Jaber Al Sabah
Court of Appeal
Circuit: Fourth Penal
In the session publicly held at the court dated 21st Shabaan,
1423 AH corresponding to 27/10/2002 AD.
Presided by the Justice / Mr. Salah Al-Fahad
With membership of Justice/ Ali AI-Subaie and Justice Mohammed Eid Mahjoub
In the presence of Mr. Abdullah Al Harise, Public Prosecution Representative, And in the presence of Mr. Esmat Abbas, Secretary of the session

The following judgment is delivered

First: in the appeal filed by:
1- Theodi Majelad Tomaro - first indictee
2- Mary Jean Delos Bitos - the third indictee
3- Nowerza Taleb Asyak - the fourth indictee
4- Lordos Ferai Aspere - the sixth indictee
5- Taleb Abdullah Taleb Al-Hameli
Versus
* Public Prosecution *
Second: in the appealed filed by:
* Public Prosecution *
Versus
I- Theodi Majelad Tomaro - the first indictee
2- Jaimi Bernard Newnevena - the second indictee
3- Mary Jean Delos Bitos - the third indictee
4- Nowerza Taleb Asyak - the fourth indictee
5- Rosali Theoro Packlage - the fifth indictee

Scheduled in the roll under no. 1426/2002 PD-451/2001 P-
182/2001 Fahaheel

The Facts
Having perused the papers, hearing the pleading and legal deliberation.

Whereas the appeal by Public Prosecution and the convicted indictees accept the last / Taleb Abdullah Taleb Al-Hameli, has fulfilled the legally determined formalities then, it is accepted in form.

Public Prosecution accused the indictees that on 10/10/2001 at Fahaheel police station area of competence, Ahmadi Governorate, they:

First: the first, second and third indictee: 1- Theodi Majelad Tomaro, 2- Jaimi Bernard Newnevena, 3- Mary Jean Delos Bitos murdered premeditatedly (Lok Ather) by plotting and intended to kill him where the first and second indictees monitored his movements while the third indictee got him to the place of the accident. For this purpose, the first indictee prepared a firearm (pistol) and ammunition and followed him while he was walking with his wife, the third indictee, and when he got him, he shoot him several times intending his death. Then he caused the injuries described in the postmortem report which caused the loss of his life while the second and third indictees were present in the place where the crime is committed for the purpose of strengthening the will of the first indictee as stated in the investigations.

Second: the fourth indictee: Nowerza Taleb Asyak and the fifth indictee: Rosali Theoro Packlage, participated with the first indictee in commissioning of the crime stated within the description of the first charge before its occurrence by the way of help when the fourth indictee provided him with a firearm and the fifth indictee guided him to the place where the victim is present on the crime scene. Then the crime is completed upon such help.

Third: the first indictee also: caused to (Mary Jean Delos) serious harm by shooting her several times. Then he caused her injuries as described in the postmortem report and as stated in the investigations.

Fourth: the first, fourth and seventh indictee: Taleb Abdullah Taleb Al-Hameli:
1- they possessed and acquired firearm (a pistol of 9 mm caliber) without license from the competent authority.
2- they possessed and acquired ammunition among those to be used in the aforesaid firearm without being licensed for its possession or acquisition.
3- they committed customs smuggling when they acquired the foregoing prohibited goods (firearm and ammunition) without submitting the proof for its regular importation.

Fifth: the first indictee also:
1- He is a man married from other woman, committed sexual intercourse with a woman other than his wife i.e. the fourth indictee (Nowerza Taleb Asyak) while he knows that she is married from another man.
2- has sexual intercourse with Nowerza Taleb Asyak who aged twenty-one years old and she was not unmarriageable for him as stated in the investigations.
3- used firearm inside residential area.

Sixth: the fourth indictee also:
1- She is a married woman, has sexual intercourse with a man other than her husband i.e. the first indictee (Theodi Majelad Tomaro).
2- She is a woman aged twenty-one years old, has accepted the first indictee to have sexual intercourse with her as stated in the investigations.

Seventh: the third indictee also:
Gave false statements before Public Prosecution by attributing the incident that (Majed Miah Al Mutairi) has murdered the victim "Lok Ather" while she knows that such act is not correct as stated in the investigations.

Eighth: the sixth indictee:
She knew the occurrence of the murder crime the subject matter of the first charge and did not inform the nearest police or investigating authorities as help by her to the indictees.

The Public Prosecution requested their-punishment by virtue of Articles 47/second, 48/third, 52/1, 136/1, 140, 145/1, 149, 150, 151/1, 161, 194, 195 of the Penal Law and Article 14, of the penal law of procedures and Articles 1/1,4, 2/1, 13/1, 21/1-4, 22 of the Decree Law no. 13/1980 concerning the firearms and ammunition and Articles 1/9, 2, 17/6, 19, 20 of the Decree Law no. 13 for the year 1980 in respect of customs and the decision no. 3/1990 delivered by Minister of Finance in respect of customs manifests and regulations. Court of First Instance ruled in presence in the session dated 28/5/2002 except the seventh indictee,

1- for life imprisonment of the first indictee with execution.

2- for the innocence of the second indictee from the charge attributed to him.

3- for three years term imprisonment of the third indictee with execution for the second charge and for her innocence from the first charge and to deport her out of the country following the punishment execution.

4- for two years term imprisonment of the fourth indictee with the execution for the crime of adultery and three years term for the amended description of the first charge with the other charges and execution and ordered her deportation out of the country after executing the punishment.

5- for the innocence of the fifth indictee from the charge attributed to her.

6- for three months term imprisonment of the sixth indictee and to deport her out of the country after executing the punishment.

7- for penalizing the seventh indictee one thousand Kuwaiti Dinars and obliging him to pay a customs fine of thirty Dinars and ordered the forfeiture of the arrested firearm and ammunition.

8- for referring the civil case to any of the Civil Circuits in the Court of First Instance. The Clerks Department should specify a session to hear the case and notify the two parties.

Then, the Public Prosecution decided to object such judgment by appeal due to misapplying the law for the first indictee as no provision is given for the deportation penalty and invoking the mutual connection in its improper place and due to the evidence as for those whose innocence is determined. The convicted indictees of the first, third, fourth, sixth and seventh indictees have also decided to object such judgment by appeal requesting the revocation of the judgment determination for conviction.

In the session fixed to hear the appeal dated 18/8/2002, the second and fifth appellees has attended from the Public Prosecution while the other indictees have not come from the prison. The court decided to postpone the case till the session dated 15/9/2002. In the last session the first, second, third and fifth indictees have attended while the other indictees did not attend. An attorney has attended with the second, third, fourth, fifth and first indictees and they denied the charge attributed to them. The third indictee stated that Majed Al-Mutairi is the killer of her husband. The court decided to postponed the case till the session dated 22/9/2002 in order to notify the Public Prosecution translator and the intelligence Police Officer / Mahmoud Mohammed Al-Ajlan and to bring the imprisoned indictees. The other indictees as well as the embassy translator have been informed to attend the session.

In the session dated 22/9/2002, the first, second, third, fourth and fifth indictees have attended but the sixth and seventh indictees did not attend. The intelligence Police Officer has attended and the court asked him after he has sworn oath as indicated in the records of the session. Then the court decided to postpone the case till the session dated 13/10/2002 and the Public Prosecution should bring the imprisoned indictees from the prison and the released indictees have been informed. In the last session the first, second, third, fourth and fifth indictees have attended while the sixth and seventh indictees did not attend. The attorney attended with the first indictee gave pleadings, explained the circumstances of the case and that his confession in the investigations is obtained by physical and moral force by criminal intelligence Police Officer and State Security and such confession is null as it is not consistent with the facts of the case and that the investigations are null and void and its source is the statements of the indictees besides his false narrative regarding the insurance policy and the confessions as well as the investigations are contradicting with the technical evidence i.e. the firearm inspection report which proved that the pistol is not used in killing the victim. Further, the sexual intercourse and adultery crime is also without any evidence. She submitted a memo mentioning the aforesaid aspects of defense requesting the innocence. The attorney attended with the other attending indictees gave his pleadings, explained the circumstances of the case and gave plea for the nullity of police investigations, the nullity of indictees confession because it is obtained by physical and moral force and that the true indictee is the person whom the victim has identified in the hospital and that the confessions contradicted with the technical evidence. He submitted a memo contained the same aspects of defense. The court decided to adjourn the case for judgment and fixed today 27/10/2002 as a date for delivering its judgment.

Whereas this court is pointing out in the beginning that it shall discuss the facts of the case, the investigations conducted in its regard, the developments took place during the trial sessions before the court of its two grades as established in the papers and as it is indicated therein since the start of notification and investigations until its end before this court. Whereas the developments of notification and investigations in the case as firmly established in the belief of the court based upon the papers thereof are that after the Fahaheel Police Station Officer notified the Public Prosecution about the murder of the victim and the injury of his wife on 10/10/2001 at 11 pm beside municipality ring road at car parking located in Fahaheel area as a result of shooting them by firearm and they have been vacated to the hospital.

Upon questioning the wife of the victim on 11/10/2001 she stated that while she was walking with the victim at Al-Shouk street in Fahaheel area before municipality ring road she heard firearm shooting and before she answers the inquiry of her husband he addressed to her regarding the same, he fall down on the ground, she fall down on his legs and in this movement she looked behind and saw a person comes near to her walking and carrying a pistol in his hand and shoot her also several times then, he escaped and that she saw the indictee upon opening the fire towards the victim and his falling down on 6 mtrs distance then, he got nearer to her while shooting her from half meter distance and that she identified his features and shooting her husband from behind was in horizontal position while shooting her was in a semi vertical deviating position.

Dated 19/10/2001 State Security police detectives submitted investigations record disclosing that the descriptions stated by the wife of the victim are applicable upon Majed Miah Al-Mutairi. A warrant for his arrest, searching him as well as his house is obtained. He has automatically appeared and then he has been introduced to the victim in the hospital through legal introduction for three times in which she recognized him at every time during the legal introduction and each time, she was crying that he is the killer other husband. Upon questioning Majed Al-Mutairi he denied the charge attributed to him and stated that he was in his place of work and got a leave from his work superior at Structures Security section due to the sickness of his son and his high temperature on 10/ 10/2001 afternoon and that he went to his home where he inquired about his son after a friend of him had brought a medicine from the pharmacy. Then after "Esha'a" prayer, he left to Sabahia camp to meet others for a religious lecture , to practice sports and have his dinner. Then he returned back to his home at 13 hours in the same evening. Two days later, Majed Al-Mutairi has been introduced to the victim under legal introduction, and then she recognized him also.

On 20/10/2001 police intelligence officer at Fahaheel police station / Mahmoud Mohammed Ahmed Al-Ajlan submitted investigations record where he established that there is no differences between the victim, his wife and others and that a large number of suspect have been introduced to the victim in the hospital and she did not recognize any of them until state security detectives introduced Majed Al Mutairi who has been introduced to her on 4/10/2001 when she recognized him and the descriptions stated by her are applicable upon him and that he has confidence in the statements of the victim because she has not recognized others among those who has been introduced to her besides the excitement and crying condition she sustains upon seeing him and the increase of her heart beats and that the investigations are being completed.

Mohammed Ali Mohammed Cabri, Saud Fayez Mohammed Fayez Al Ajmi, Yousuf Ziyab Mohammed Al Sakr, Saud Ali Al Jari, Khazal Khaled Madi Al Azmi and Mubarak Homoud Hussein Al Azmi has been questioned and all of them stated that Majed Al Mutairi has come to Sabaiya camp on 10/10/2001 evening at about 8 pm, spent time with them for receiving religious lecture and then he played football and had dinner with them and he left at 12 pm approximately.

His wife stated that he came of the house after she called him due to the sickness of his son. Then he sat in the common sitting hall "Diwaniya" with some friends and later, he left after an "Esha'a" prayer to Sabahiya camp. Then she saw him in the next day morning at home, Walid Abdul Aziz Abdul Kareem, lieutenant at Structures Guard Section in the Ministry of Interior, testified in the investigations that Majed Al Mutairi has obtained a leave due to sickness of his son however, he has not returned it back in the fixed time on 10/10/2001 evening and he did not answer the call made to him and the same testimony is also given by Badr Mohammed Dhaif Al Mutairi and Hazaa Hayef Hamdam, who are working in the same Department.

The Deputy Attorney General investigating the incident established his moving to the hospital where the victim is hospitalized. He made a legal introduction without the entry of Majed Al Mutairi therein. Then the victim stated that the indictee is not among those who have been introduced. Then the Deputy Attorney General made legal introduction four times and in each time the victim recognized Majed Al Mutairi as he is the killer of her husband. On 23/10/2001, Kabeer Hussein Abdul Kader, the Guard of the camp, testified that he knows those coming to the camp and he knows Majed Al Mutairi and that he has not seen him in the camp on 10/10/2001 evening. Dated 27/10/2001, Majed Al Mutairi submitted a complaint mentioning that the State Security staff attacked him by beating and took from him acknowledgment for committing the incident. Then on 6/11/2001 the police intelligence officer Mahmoud Mohammed Al-Ajlan submitted another investigations record where he established that the first indictee / Theodi Majelad Tomaro is the person who committed the crime of murdering the victim and shooting him with firearm. Upon facing the wife of the victim, she stated that Theodi is the person who murdered her husband due to his sexual molestation with her and she refused to respond him. He added that his investigations disclosed the participation by the wife of the victim with the indictee Theodi in killing her husband and attacking her is made for the purpose of excluding the suspect away from her and that the motive behind the same is to obtain the amount of Canadian Dollars eighty thousand the value of the insurance policy effected on the life of the victim in her favor. Then, by re-questioning Mari Jeen the wife of the victim she confessed in the investigation that the first indictee is the person who opened the fire towards her husband as well as her and that she saw him nearer to them while shooting her and that she has already met and acquainted with him through her friend the fifth indictee / Rosali Theoro Packlage and that he made sexual molestation with her by telephone however she refused and told her victim husband about the same and that she is not accusing him fearing him to attack her family in Philippine and also in order to safe her life. Upon questioning the first indictee / Theodi Majelad Tomaro he confessed in the investigations that he agreed with the third indictee , the wife of the victim, at the house of the fifth indictee, his girlfriend , and without her knowledge that he shall murder the victim inconsideration of obtaining a sum of money out of the value of the insurance policy effected by the victim to insure on his life in favor of his wife and that he has not fixed a time with her for execution but he contacted with the fourth indictee/ Nowerza Taleb Asyak, who is married of a Kuwaiti person who was not in Kuwait in the time of the accident and who has a love relation and sexual intercoursed with her previously. He requested a pistol from her without telling her that he shall murder victim and insure his presence. Then, he agreed three days prior to the accident i.e. 7/10/2001 with the second indictee / Jaimi Bernard Newnevena to monitor the victim and he called introduce them to him while they were in the market. On the day of the accident i.e. 10/10/2001 evening he contacted the fourth indictee who brought him the victim and gunshots and put them inside black bag. Later, he met with the sixth indictee / Lordos Ferai Aspere at her house near to the place of the accident where he was following up the victim and his wife and left the second to complete monitoring until the time when he left the house of the sixth indictee, he saw the victim accompanying his wife the third indictee whom he knew from the fifth indictee that she went out with her husband in a precedent time. The fifth indictee told him that the time is appropriate to execute the agreement with the third indictee. As soon as he saw the victim and his wife after they went out internet cafe passing the car parking where the light is faint and most of the shops are closed and there is no light except street lights, he opened the fire towards the victim from behind and then he fall down and thereafter his wife fall down with him then, he got nearer to him and shoot him twice more then he shoot his wife in her shoulders and then he flee escaping. He added that the pistol brought to him by the fourth indictee is the one he used in committing the crime and that he delivered it to her after the accident as he called her after committing the accident and after the sixth indictee refused his stay with her after he told her that he killed the Canadian citizen. Upon facing him with the statements given by the fourth indictee that he told her that he did not use the pistol in killing, he denied such statements and said that he used the pistol in killing. Upon questioning the wife of the victim, she denied the charge attributed to her and upon questioning the fourth indictee/ Nowerza Taleb Asyak, she stated that she has an affair with the first indictee and he has sexual intercourse with her one time and that he requested the pistol from her without her knowledge about the person of the victim and she delivered him the pistol and ammunition belongs to her Kuwaiti husband who was out of Kuwait on that time i.e. the date of the accident 10/10/2001 at 8 pm and that he called her around 11 evening on the same day requesting her to come to him in order to reach him to another place as she came to him by her car, left him at Abu Halifa area, delivered him the pistol and the other gunshots. He told her that the pistol is clean and it is not used in killing. However, upon facing him by such statement given from her, he insisted that he did not mentioned the same to her at all and that he used the firearm belongs to her in killing the victim.

Upon questioning the fifth indictee / Rosali Theoro Packlage, she denied her knowledge of the accident and acknowledged that she knows and has a friendship relationship with him and the first indictee is staying with her.

Upon questioning the sixth indictee / Lordos Ferai Aserivtowa, she stated that she has no knowledge about the crime before its occurrence as the first indictee came to her at about 9 pm on the date of the crime i.e. 10/10/2001 then he left and returned it back at about 11 and told her about the death of the Canadian citizen and requested to stay with her when she asked him to leave the place promptly and then he contacted a person whom she doesn't know and he left her house.

Upon questioning the second indictee / Jaimi Bernard Newnevena, he denied the charge attributed to him staling that in the time of the accident he was with a friend of him called Adjaro who confirmed the same upon questioning him at the Public Prosecution.

Whereas upon questioning the seventh indictee / Taleb Abdullah Taleb Al-Hameli, he denied the charge attributed to him stating that he found the firearm after the invasion and kept it and that he was out of Kuwait in the time of the accident. Upon questioning the intelligence Police Officer at Fahaheel police station he stated that his investigations disclosed the commissioning of the crime by the first indictee in agreement with the third indictee with the assistance with the second indictee and that the first indictee is arrested on 26/10/2001 however he was only referred to the Public Prosecution on 6/11/2001 as he was continuously denying without being desirous to confess for commissioning the crime and that the indictee has used the pistol brought to him by the fourth indictee which belongs to her husband the seventh indictee and also the gunshots and then, he returned it to her after commissioning the crime. Upon facing him with the fact disclosed by the firearm inspecting report that the arrested firearm and ammunition are not used in commissioning the crime and that the killing occurred by using another firearm.

He also stated that the indictee might have used another firearm and that the statement he gave was through the confession by the fourth indictee. Whereas the postmortem report for the corpse of the victim has concluded that the death has occurred due to the following injuries:
1- Injuries in the chest, left hip scortum which caused by the bullet settled in his body which is of 9 mm caliber among those shot from manual pistols of 9 mm caliber and such injuries have caused laceration in the lung, heart, blood vessels, bleeding and shock and such injuries has caused by gunshots each of them is filled with individual bullets and the bullets extracted from the corpse of the victim shown to be of 9 mm caliber marked with six spiral lines with right direction among those shot from manual pistols of 9 mm caliber which is identical to the bullet sent from the crime scene which proofs that it is shot from one firearm. It is mentioned in the crime scene survey report that one empty gunshot container is found in a distance far from the corpse by about 11 meters towards the right direction, two empty gunshot containers are found in a distance far away from the corpse by 8 meters approximately and one empty gunshot container is found in a distance far away from the corpse by 7 meters towards the right side and in the same side one gunshot empty container is found in a distance far away by about 6 meters, one gunshot empty container is found in front opposite to the legs by about 3 meters and other gunshot empty container far away from the corpse in the left side by about 2 meters. These gunshot empty containers have been shot from one firearm with 9 mm caliber. It is also established from the firearm and ammunition inspection report that they are fit for use and governed by the Firearms and Ammunition Law no. 13/1991 and it is ascertain that fire is opened from the pistol however it is difficult to fix the shooting time. It is also ascertain that the gunshot empty containers sent with the gunshot empty container and the bullet resulting from the shooting experiment are not identical in the case for which the firearm is provided and that the forwarded magazine is fit for use.

Whereas upon questioning Ossama Ahmed Abdullah, head of Firearms Section in the General Administration for Criminal Evidences, in the investigations he stated that the arrested firearm is a pistol of 9 mm caliber and it appears from the inspection that the pistol and ammunition are fit for use and it is difficult technically to fix the time of using them previously and that the firearm used in the accident is other than the arrested firearm and ammunition because each pistol is having a certain impression that recognizes it through the marks left on the gunshot empty container and the bullet resulting from shooting and it is different from a pistol to another which shall be recognized through microscopic examination for the shotgun empty container. The bullet and the parts of the pistol cannot be replaced or changed in case of those connected with the impression except fire trigger which can be replaced and such replacement of fire trigger shall not affect the result as it has no impact on the marks left by the pistol on the shot empty container and the bullet resulting thereof. Upon facing him with the statements of the first indictee and the Police Officer of the accident/ Mahmoud Mohammed Al Ajlan that the arrested firearm is the one, which used in the accident, he stated that the same is not correct and that the arrested firearm and ammunition were not used in killing the victim.

Whereas indictees have denied the charges attributed to them before the Court of First Instance and each of them gave his respective defense regarding the nullity of his confession due to force and the incorrectness of translation works. The First Instance Court Judgment ended to the determination appealed by the Public Prosecution due to misapplying the law regarding the absence of a provision for deporting the first instance and invoking the connection in improper place and due to evidence as stated by each of the first, third, fourth, sixth and seventh indictees.

The case is deliberated before this court as established in its records and the police intelligence officer has been questioned in front of it who has not disclosed the source of his investigations and he did not justify the hesitation of his investigations regarding accusing Majed Al Mutairi, first, then the indictees, second, except by saying that he was completing his investigations. He did not also justify the reason for the conclusion given in his investigations that the first indictee has used the arrested firearm and ammunition in killing the victim and the conclusion given in the Criminal Evidences Report that the same is not used in killing the victim. The court decided to adjourn the case for judgment and fixed today date as a time for rendering its judgment.

Whereas the seventh indictee stated in the objection for appeal filed against the said judgment under a summons and legally served in the session fixed to hear the appeal through a sound manner of service however he did not attend and no attorney has attended on his behalf explaining his excuse for absence. Accordingly this court concluded to the determination that considered his absence as a waiver by him for the objection he submitted and then, the court determines to consider the appeal filed by the seventh indictee as null and void pursuant to the second paragraph of Article (204) of the Penal Law of Procedures.

In view of the above and whereas the Public Prosecution has relied in the list of the evidences through which it referred the indictees to trial on the confessions of the indictees in the investigations it has conducted, the police investigations, the statements of the persons who carried out such investigations besides arresting the firearm and ammunition, Criminal Evidences Reports and the forensic medicine report regarding postmortem. Then the determination rendered by the Court of First Instance ended to convicting the indictee and others who have been convicted thereby on the basis of their confessions for commissioning the crime specially the first and fourth indictees and on police investigations as well as the fact established from the technical reports.

As such and whereas it is legally determined that the basis of the criminal judgments is the liberty of the Judge - the trial judge -in estimating the evidences existing in the case and that the trial court is having the right to infer from the statements of witnesses and all elements put for search and discussion, the correct picture for the incident of the case as per the court belief and shall exclude the other pictures contrary thereto as long as its inference is properly based upon reasonable and logic evidences and having its origin in the papers. Further, the confession in the penal matters is among the elements which the trial court is having the complete liberty to estimate its correctness and value for evidence and the court may not rely on them when it deems that the same is in conflict with the truth and fact as the discretion in the matter entirely is attributed to the belief of its judge and whatever he is satisfied with. Then no man may be declared guilty even upon a confession he uttered by his tongue or in writing whenever it is violating the truth and fact as consideration in the penal trials is given to the belief of the trial judge based upon the evidences submitted before him for the conviction or the innocence of the indictee. It is also legally determined that the criminal judgments must be built upon the definite legitimate evidences inferred by the judge through the investigation he carries out independently in constituting such belief by himself alone without other partner. Although the origin is that the court may rely for constituting its belief on the investigations under consideration that it is supporting the evidences set forth therein as long as the same is put for research and discussion however, it is not valid alone to be a basic proof or evidence for the charge. Whereas it is legally determined that the trial court may render a determination not decided by the Expert in the case however, it is legally determined that when the court took up the task of refuting the technical opinion of the Expert, the court should rely on technical reasons adopting it. Estimating the Expert works and its power in evidence is also left to the authority of such court in its capacity as the trial court because the same is connecting with its authority for estimating the evidence in the case. Furthermore if it is legally determined that it is not stipulated that the oral evidence should be identical to the technical evidence but it is sufficient that the entire oral evidence shall not contradicting with the technical evidence in a way that renders conciliation to be difficult. If it was completely contradicting and conflicting, there is no place to say that both of them shall be adopted equally as a base for the conviction. As such and whereas the essence of the appealed judgment ruling for convicting the indictees is their confession specially the first indictee that he murdered the victim by opening the fire towards him from behind as he fall on the ground then he opened the fire near to him and from a shooting distance to about 1/2 meter, he shot two bullets towards the middle area of the body and then he opened the fire on his wife from the firearm he received from the fourth indictee and also the ammunition brought by the latter which is the firearm belongs to her husband, the seventh indictee who was not at his house in that time and that he returned to her such firearm as well as the remaining ammunition after he committed his cry. The fourth indictee also confessed that the first indictee has obtained from her such firearm at 6 pm on the day of the accident i.e. 10/10/2001 and that he returned such firearm to her. The police intelligence officer in the record of his investigations and statements mentioned before the Public Prosecution that the firearm and ammunition rendered by the fourth indictee are the ones which used in killing the victim. It is mentioned in the Criminal Evidence Report pertinent to examining the firearm and ammunition and the statements given by the supervisor of Firearm Section in the General Administration for Criminal Evidences in which this court is having a trust and adopting the conclusion thereof and is satisfied with the statements of such supervisor of the section which he gave in the investigations that the arrested firearm and ammunition although they are fit for use and it is difficult technically to fix the time of firing them however, the arrested firearm is not the firearm used in killing the victim and the injury of his wife and also, the parts of the firearm after using it may not be replaced besides that replacing the fire trigger has no impact upon the result he concluded to as every pistol is having a certain impression that appears on the gunshot empty container and the bullet which is microscopically examined as detailed in the beginning of these reasons. Then, confession by the first indictee and the fourth indictee for using the arrested firearm in killing the victim and causing the injury of his wife, came contradicting and in conflict with the fact established from the technical report for the arrested firearm in a way that renders conciliation as difficult in this regard and also with the police intelligence report and the statements given by the persons who carried out the same during the investigations. Then the court is setting aside such confession attributed to the first indictee as a confirmation evidence in the case and also the confession attributed to the fourth indictee. There is no place or vain for her to say that the first indictee told her while returning the firearm that it is clean and not used as the indictee has denied that he mentioned the same to her and his insistence while facing her that it is the firearm that has been used and the same also was made before facing her by the result of the technical report for the firearm which is contradicting with the technical evidence as well as the fact in the case.

In view of the above and whereas investigating the crimes is aiming to discovering the crime and identifying the person who committed it which represents serious signals and marks for such investigations. If the investigations did not discover the crime or identifying its doers and the circumstances of committing it in the time and place, it shall be unserious investigations reaching to the stage of vanishing. The statements given by Fahaheel police intelligence officer in his records which he repeated in the investigations only represents unsubstantiated narratives as once he confirms in the investigations the creditability of the accusation attributed by the third indictee, the wife of the victim, to Majed Al Mutairi as she recognized him confirming that her heart beatings appearing on the appliance in the hospital were threatening her life due to its increase when she cries upon seeing Al Mutairi whom she recognized more than one time. Then once again he brings another completely new investigations carrying other incidents by accusing the indictees without indicating the content of such investigations but attributed the matter to the third indictee, the wife of the victim, confirming the existence of insurance policy amounting to Canadian Dollars eighty thousand in favor of the third indictee and he established such policy as an objective and goal for distributing the roles between the indictees intending to distribute the fruit of the crime between the third, first and second indictees and as a motive for the fourth indictee to get rid of her current husband and to marry from the first indictee after achieving his objective from the money, goes to Philippine and lives there together. Then the technical report appears and decides conclusively that the firearm which he said to be used in commissioning the crime, is not the firearm that used in the accident and he is justifying the same upon facing him by such technical fact that the person who told him about using the firearm is the first and fourth indictees and that the first indictee might have used another firearm. Then his investigations are deviating due to the aforesaid reasons to the conditions of vanishing after it has lost its seriousness and creditability besides that the court is not trusting the statements given by the first and fourth indictees within such circumstances prevailed in the investigations and the first indictee remained under the control of the police intelligence through the statements given by the Police
Officer by himself during the investigations for a period amounting to about ten days under the argument that the first indictee was not desirous for commissioning the crime the matter which discloses definitely that the Police Officer did not refer the first indictee to the Public Prosecution except after he realized his objective from the first indictee i.e. confession for the crime.

In view of the above and whereas the original rule is that prevailing is for the legal procedure which invoking if resulted to the escape of a criminal from punishment is better than depriving the people of their liberty and imprisoning an innocent person. The route of investigations since arresting the indictee and continuing his detention with the police for about ten days and the force he has been exposed to in order to confess a crime as planned by the person who practiced the force against him which is inferred from the statements given by the Police Officer by himself as aforesaid and hence, the court is not satisfied with the sentences noted within a confession attributed to the first or fourth indictees concerning the crime of sexual intercourse. The court is not also satisfied for the same reasons to the statement given by the victim (the third indictee) that she has not stated in the beginning of the investigation that the first indictee has committed the crime fearing that he may kill her one time or kill her family in another time for the same reasons specially she denied before the court with its two grades and that there are facts included in the papers since attributing the charge to the first indictee supporting the confidence in her defense to the extent that the statements given by her are obtained by force and threatening. As such and whereas the statement given by the sixth indictee that the first indictee confessed to her for murdering the victim and injury of his wife and she denied such statement before this court as well as the Court of First Instance was representing a defense having its source as aforesaid after it is proved that the confession is stated by the first indictee is contradicting with the technical evidence and is obtained by physical and moral force and null arrest as such confession together with the confessions given by the other indictees is covered with fabricating the evidence in the papers due to the following reasons:

First: the Police Officer under his statements in the investigations declared that he has detained him under his control and authority for about ten days after arresting him so that he shall confess for commissioning the crime. Accordingly such confession is obtained by physical and moral force.

Second: such confession is attributed to the first indictee has come suddenly and at a result of investigations declared by the police officer without any introduction for it as the former investigations were confirming that the killer is another person who has been arrested, investigated and imprisoned and the conditions of arresting the indictee are not clear or fixed in the papers specially the police officer stated in the investigation before this court that he is not remembering if the person who first confessed the commissioning of the crime is the third indictee or the fourth indictee. He mentioned in his statements during the investigations that he detained the first indictee under his custody so that he shall confess for commissioning the crime. Then in the time of arresting him, the police officer was not having a serious evidence that the first indictee has committed the crime and the indictee was not in a red handed condition or a permission is obtained from the competent authority authorizing to arrest him. Therefore, arresting him has occurred contrary to the provisions of the Penal Law of Procedures and the confession attributed to him is obtained by such null arrest and as such, the same confession is also null.

Third: that such confession came against the truth evident in the papers because it is completely contradicting with the technical evidence as the confession of the first indictee has focused on that he committed the crime against the victim by using the firearm, the pistol, given to him by the fourth indictee and which belongs to her husband, the seventh indictee. Then, the technical report for examining the firearm and the statements given by the technician who drafted such report were decisively and definitely for the fact that the firearm is not used in commissioning the crime against the victim. Then such confession came in a manner contradicting with the technical evidence and it may not also be consistent therewith. In such field it may not be said that the tool used for committing the crime is not a constituent among the crime constituents or an element among its elements because the matter is the present case is related to the confirming evidence and not to find the tool used in committing the crime or not. It may not be also said that the confession is separate from the null procedure, as such confession has been generated from the said procedure under the declaration given by the Police Officer himself during the investigations. As but for such arrest, which continued ten days, the said confession would not have existed but the indictee has been only referred to the Public Prosecution after he confessed to the Police Officer for commissioning the crime.

Fourth: that due to these facts impaired the null confession from the first indictee and the defects prevailed which nullified it and the circumstances surrounded it, such nullity shall extend to the statement given by him during the investigations in order to justify his relation with the fourth indictee that he is having sexual relation with her and he had sexual intercourse with her then she also acknowledge such relation and then, the court is also excluding such confession and sets it aside.

Fifth: The investigations carried out by the Police Officer only represents stories invented by him as once he justifies the accusation attributed by the victim to Majed Al Mutairi, as abstracted from recognizing him by her due to her condition that exists with her when she views and recognizes him as mentioned in his statements at the investigations then, once again he submits investigations to the extent that the first indictee in agreement with the third indictee the wife of the victim, has murdered the victim for sharing the value of an insurance policy concluded in her favor for the amount of Canadian Dollars eighty thousand and it is proved that such narrative is having no base of correctness after the investigations disclosed that such policy is not existing. It is also proved that his narrative is untrue with regard to that the fourth indictee has provided him with the pistol after it is established from the technical report as well as the statements given by the competent technician that he has not definitely used the firearm in murdering the victim and upon facing him with all of the aforesaid, he did not give any justification except that he conveyed the same from the first and fourth indictees the matter which determines decisively that he has not carried out any investigations about such fact through searching and discovering the truth thereof.

In view of the above and whereas this court has discussed as aforesaid the evidence provided by the Public Prosecution and Court of First Instance for convicting the indictees and explained through the above demonstration its doubt therein and the mistrust felt by the court towards the elements of evidence including the confessions and investigations. Therefore, the court is ruling for revoking the appealed judgment in respect of its determination for convicting the indictees for the charges attributed to them and their innocence from such charges attributed to all of them pursuant to Article (209) of the Penal Law of Procedures. As such and whereas the court concluded to the innocence of the first indictee from the charges attributed to him, there will be no proper place for the appeal raised by the Public Prosecution with regard to the lack of a provision in the text of the judgment for the penalty of deportation or severe penalty. There is also no proper place to say the misapplying of law due to invoking the connection in its improper position as besides that the same in case of conviction shall only realize purely theoretical legal interest, as after the conclusion reached by the court in the foregoing there will be no place to say its invoking in its improper position. The Public Prosecution has not also submitted new evidence confirming the accusation towards the indictees other than its list of the confirming evidences. Then appeal by the Public Prosecution through the three reasons shall be without base and must be rejected regarding the merits and the appealed judgment should be supported regarding its determination for the innocence of the second indictee and the third indictee , the wife of the victim , from the first charge after this court has concluded through its reasons to exclude her confession for her knowledge that the first indictee is the killer of her husband due to its contradiction with her previous statements in the investigations that she has recognized another person more than one time before State Security and Criminal Intelligence and the Public Prosecution and the determination is rendered by this court for the innocence of the first indictee and the innocence of the fifth indictee pursuant to Article (208) of the Penal Law of Procedures.

For these reasons the court ruled:

First: for considering the appeal filed by the seventh indictee / Taleb Abdullah Taleb Al Hameli as null and void

Second: for admitting the appeal filed by the Public Prosecution as well as the convicted indictees in form and in the merits, (a) for revoking the appealed judgment as for the first, third, fourth and sixth indictees regarding its determination for convicting them and to adjudicate for their innocence from the charge attributed to them, (b) for rejecting the appeal filed by the Public Prosecution against the second, third, and fifth indictees and to support the appealed judgment regarding its determination for the innocence of the second, fifth and third indictees as for the charge of murdering the victim and to support it regarding its determination for the forfeiture penalty.

Secretary of the session Chairman of the session