vol_4_4_chapter_4_part_III

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CHAPTER 4: THE SHARIA PENAL CODES 80. No act is an offence which is done by a person involuntarily and without the ability of controlling his act by reason of act of God or sudden illness which makes him incapable of avoiding that act. 108 81. It shall not be an offence if an act is done by a person who is compelled by necessity to protect his person, property or honour, or person, property or honour of another from imminent grave danger which he has not wilfully caused or wilfully exposed himself or other persons to and which he or that other person is not capable of avoiding. 109 82. Nothing is an offence by reason that it causes or that it is intended to cause or that it is likely to cause any injury if that injury is so slight that no person of ordinary sense and temper would complain of such injury. 83. Nothing contained in the provisions of sections 66–81 shall prejudice the right of diyah or damages in appropriate cases. 110 The Right of Private Defence 84. Nothing is an offence which is done in the lawful exercise of the right of private defence. 85. Every person has a right, subject to the restrictions hereinafter contained, to defend: (a) his own body and the body of any other person against any offence affecting the human body; (b) the property whether movable or immovable of himself or of any other person against any act, which is an offence falling under the definition of theft (sariqah), robbery (hirabah), mischief (fasad) or criminal trespass (ta’addi), or which is an attempt to commit theft (sariqah), robbery (hirabah), mischief (fasad) or criminal trespass (ta’addi). 111 86. When an act, which would otherwise be a certain offence is not that offence by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act or by reason of any misconception on the part of that person, 112 every person has the same right of private defence against that act which he would have if the act were that offence. Illustrations: 113 (a) Z under the influence of madness attempts to kill A; Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane. (b) A enters by night a house which he is legally entitled to enter. Z, in good faith taking A for a house-breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has the same right of private defence against Z, which he would have if Z were not acting under that misconception. 108 Not in PC. 109 Not in PC. 110 Not in PC. 111 PC does not include the Arabic words for the specified offences. 112 Bauchi compresses all conditions into: “by reason of infirmity of mind or misconception of the offender” . 113 Gombe does not include the illustrations. 58
CILS HARMONISED SHARIA PENAL CODE ANNOTATED 87. Subject to the provisions of section 203 paragraph (c) of this law, 114 the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. 88. There is no right of private defence in cases in which there is reasonable time to have recourse to the protection of the public authorities. 115 89. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done or attempted to be done: (a) by a public servant doing an act justifiable in law and in good faith; or (b) by any person acting under the direction of a public servant acting lawfully and in good faith. 116 90. The right of private defence of the body extends, under the restrictions mentioned in sections 87 and 88 to the voluntary causing of death only when the act to be repelled is of any of the following descriptions, namely: (a) an attack which causes reasonable apprehension of death or grievous hurt; or (b) rape or an assault with the intention of gratifying unnatural lust; or (c) abduction or kidnapping. 91. The right of private defence of property extends, under the restrictions mentioned in sections 87 and 88 to the voluntary causing of death only when the act to be repelled is of any of the following descriptions, namely: (a) robbery (hirabah); or (b) house-breaking by night; or (c) mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling or as a place for the custody of property; or (d) theft, mischief, or house-trespass in such circumstances as may reasonably cause apprehension that, if such right of private defence is not exercised, death or grievous hurt will be the consequence. 92. If, in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk. 117 114 PC, Gombe, Jigawa, Kano, Kebbi, Sokoto, Zamfara all leave out this initial “subject to” clause. 115 The word “reasonable” is omitted from all codes except Kano and Katsina. 116 PC adds the following explanation not included in any SPC: “A person is not deprived of the right of private defence against an act done or attempted to be done: (a) by a public servant as such unless he knows or has reason to believe that the person doing that act is such public servant; or (b) by the direction of a public servant, unless he knows or has reason to believe that the person doing the act is acting by such direction or unless such person states the authority under which he acts or, if he has authority in writing, unless he produces such authority if demanded.” 117 PC and Sokoto insert an illustration following this section: “A is attacked by a mob which attempts to kill him. He cannot effectually exercise his right of private defence without firing on the mob and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence if by so firing he harms any of the children.” 59
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