vol_4_4_chapter_4_part_III

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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. 74
CILS HARMONISED SHARIA PENAL CODE ANNOTATED 147. Whoever commits the offence of theft under section 145 or where the punishment of theft was remitted under section 146 shall be punished with imprisonment for a term which may extend to one year and shall also be liable to caning which may extend to fifty lashes. 200 Drinking alcoholic drink (Shurb al-Khamr) 148. Whoever drinks alcohol or any other intoxicant knowingly and voluntarily, shall be punished with caning of eighty lashes. 201 149. Whoever prepares alcohol by either manufacturing, pressing, extracting or tapping whether for himself or for another; or transports, carries or loads alcohol whether for himself or for another; or trades in alcohol by buying or selling or supplying premises by either leasing or storing or leasing out premises for the storing or preserving or consumption or otherwise dealing or handling in any way alcoholic drinks or any other intoxicant shall be punished with caning which may extend to forty lashes or with imprisonment for a term which may extend to six months or with both. 202 150. Whoever is found drunk or drinking in a public or private place; and conducts himself in a disorderly manner, to the annoyance of any person or incapable of taking care of himself, shall in addition to the punishment specified in section 148 above, be punished with imprisonment for a term which may extend to six months or with a fine which may extend to two thousand naira or with both. 203 Robbery (Hirabah) 151. Whoever acting alone or in conjunction with others in order to seize property or to commit an offence, or for any other reasons voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt, or of 199 Subsection (i) not included in any SPC. 200 Bauchi: 1 year/40 lashes. Kaduna: ta’azir. PC: punishment for theft: 5 years or fine or both; but if in or from any building, tent, or vessel etc., or if by a clerk or servant etc., 7 years or fine or both; and if done having made preparation for causing death or hurt or restraint etc., 14 years and fine; with two illustrations. 201 Bauchi: “whoever, being a Muslim”. No SPC includes the word “knowingly”. Bauchi adds: “For the purpose of this section the intake of any substance that causes a change in the physical balance of the individual shall attract the same penalty.” PC: “Whoever being of the Moslem faith drinks anything containing alcohol other than for a medicinal purpose shall be punished with [up to 1 month or £5 or both].” PC §404: punishments can double or triple for 2 nd or subsequent convictions within 6 months. 202 Bauchi, Jigawa, Kaduna, Kano and Katsina include “or any other intoxicant”, but Kano and Katsina, perhaps inadvertently, omit before this phrase the words “alcoholic drinks”. Punishments: Bauchi: 2 years/80 lashes. Kaduna: ta’azir. PC: no similar section. 203 Bauchi: 1 year and 80 lashes, or fine. Kano and Katsina: 6 months or N5,000 or both. Kaduna: ta’azir. PC contains two separate sections related to this one: §401: “Whoever is found drunk in a public place or in any place by entering which he commits a trespass, shall be punished (a) with [up to 3 months or £50 or both]; and (b) if the person so found conducts himself in such place in a disorderly manner or is incapable of taking care of himself, with [up to 6 months or £100 or both].” §402: “Whoever being drunk in any private place there conducts himself in a disorderly manner to the annoyance of any person having a right to exclude him from such place or fails to leave such place when requested to do so by such person, shall be punished with [up to 6 months or £100 or both].” §404: punishments can double or triple for 2 nd or subsequent offences within 6 months. 75
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