vol_4_4_chapter_4_part_III

CHAPTER 4: THE SHARIA PENAL CODES
but with legal justification the waliyy al-damm shall be deemed to have committed
intentional homicide punishable under section 199. 276
203. Except in the circumstances mentioned in section 199 intentional homicide is
punishable with the payment of diyah and a term of imprisonment which may extend to one
year and not with death in any of the following circumstances 277 :
(a) where the offender is an ascendant or teacher of the victim and the intention of
the ascendant or teacher is clearly shown to be the correction or discipline of the
victim; 278 or
(b) where the offender, being a public servant acting for the advancement of public
justice or being a person aiding a public servant so acting exceeds the powers given to
him by law and necessary for the due discharge of his duty as such public servant or
for assisting such public servant in the due discharge of such duty and without ill will
towards the person whose death is caused; 279 or
(c) where the offender, in the exercise in good faith of the right of private defence of
person or property, exceeds the power given to him by law and causes the death of the
person against whom he is exercising such right of defence without premeditation and
without any intention of doing more harm than is necessary for the purpose of such
defence. 280
204. Whoever does any act not resulting in death with such intention or knowledge and in
such circumstances that if he by that act caused death, he would be guilty of intentional
homicide, shall be punished with imprisonment for a term which may extend to one year and
shall also be liable to caning of one hundred lashes. 281
276 Kaduna does not split the punishments into subsections (a) and (b); what is here subsection (b) is
put as a proviso to the foregoing. PC: no similar provision on waliyy al-damm.
277 Bauchi, Gombe, Jigawa, Kebbi, Sokoto, Yobe, Zamfara: “punishable with diyah and not with
death”. Kano and Katsina complicate this section by dividing it into two subsections: “(1) Except in
the circumstances mentioned in section 142, intentional homicide is punishable with the payment of
diyah and a term of imprisonment which may extend to ten years where the offender is the father of
the victim. (2) Except in the circumstances mentioned in section 142, intentional homicide is
punishable with diyah and a term which may extend for life imprisonment: [then giving what are here
subsections (b) and (c)].” This section is parallel to PC §222, listing seven cases in which “culpable
homicide is not punishable with death”. Two of the PC cases are included here, see notes to
subsections (b) and (c). The other five: offender deprived of the power of self control by grave and
sudden provocation; committed without premeditation in a sudden fight in the heat of passion; the
decedent assumed the risk of death; woman kills her child under one year the balance of her mind
being disturbed by not having recovered from giving birth; the death was caused by a rash or negligent
act.
278 No SPC includes “or teacher”. Kano and Katsina omit this subsection altogether. There is also
nothing like it in PC.
279 = PC §222(3), part of the definition of “culpable homicide not punishable with death”, except that
after “exceeds the power given to him by law” PC inserts: “and causes death by doing an act which he
in good faith believes to be lawful and”.
280 = PC §222(2), part of the definition of “culpable homicide not punishable with death”.
281 Bauchi: 1 year/40 lashes. Kebbi: 5 years/100 lashes. Kaduna: ta’azir. PC has separate sections on
attempts to commit culpable homicide punishable with death and not punishable with death, punishing
the former with imprisonment for up to life or fine or both, and the latter with up to 3 years or fine or
both unless hurt is caused in which case up to 7 years or fine or both.
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