vol_4_4_chapter_4_part_III

CHAPTER 4: THE SHARIA PENAL CODES
and where the offender is convicted for the fifth or subsequent thefts, he shall be imprisoned
for a term not exceeding one year. 197
145. Whoever commits the offence of theft that does not meet with the requirement of hirz
or nisab as provided under section 144 is said to commit the offence of theft not punishable
with hadd. 198
146. The penalty of hadd for theft shall be remitted in any of the following cases:
(a) where the offence was committed by ascendant against descendant;
(b) where the offence was committed between spouses within their matrimonial
home; provided the stolen property was not under the victim’s lock and key;
(c) Where the offence was committed under circumstances of necessity and the
offender did not take more than he ordinarily requires to satisfy his need or the need
of his dependents;
(d) where the offender believes in good faith that he has a share (or a right or
interest) in the said stolen property and the said stolen property does not exceed the
share (or the right or interest) to the equivalent of the minimum value of the property
(nisab);
(e) where the offender retracts his confession before execution of the penalty in cases
where proof of guilt was based only on the confession of the offender;
(f) where the offender returns or restitutes the stolen property to the victim of the
offence and repents before he was brought to trial, he being a first time offender;
(g) where the offender was permitted access to the place of custody (hirz) of the
stolen property;
(h) where the victim of the offence is indebted to the offender and is unwilling to
pay, and the debt was due to be discharged prior to the offence, and the value of the
property stolen is equal to, or does not exceed the debt due to the offender to the
extent of the nisab;
(i) Where the confession made by the offender was obtained involuntarily in cases
where proof of guilt was based only on the confession of the offender. 199
197 PC does not include anything similar to what are here §§144-146. SPCs: only Kaduna includes the
words “from the ankle” in this section. For fifth offence: Bauchi: life; Kaduna: ta’azir. Kebbi:
“PROVE: 1. Moveable property. 2. Property must be moved. 3. No right of entry. 4. Mukalif (sound
mind). 5. Self confession. 6. Property must not be in open place.”
198 Kaduna adds: “Provided that a person may not be subject to hadd punishment who commits theft in
times of war, famine, or other natural” [sic]. Katsina omits this section entirely. Kano, instead of this
section, has here: “Whoever is a public servant or a staff of a private sector including bank or company
connives with somebody or some other people or himself and stole public funds or property under his
care or somebody under his jurisdiction he shall be punished with amputation of his right hand wrist
and sentence of imprisonment of not less than five years and stolen wealth shall be confiscated. If the
money or properties stolen are mixed with another different wealth it will all be confiscated until all
monies and other properties belonging to the public are recovered. If the confiscated amount and
stolen properties are not up to the amount the whole wealth shall be confiscated and he will be left
with some amount to sustain himself.” This provision of Kano’s substitutes for the section on
“criminal breach of trust by public servant or by banker, merchant or agent”, §167 here, which Kano
omits.
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