vol_4_4_chapter_4_part_III

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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. 86
205. Whoever abets: CILS HARMONISED SHARIA PENAL CODE ANNOTATED (a) any person under fifteen years of age, or any insane person, or any delirious person or any idiot or any person in a state of intoxication, to commit suicide or to kill himself; 282 or (b) any person to commit intentional homicide or unintentional homicide, shall be punished under section 199 of this law if: (i) the abettor knew of the probable or likely consequence or result or effect of the act of the persons mentioned in (a) or (b) above; and (ii) the execution/carrying out of the act by the persons mentioned in (a) or (b) above would not have been possible without the abetment of the abettor. 283 Causing miscarriage, Injuries to unborn children, Exposure of infants, Cruelty to children and Concealment of births 206. Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with the payment of ghurrah, and shall also be liable to caning which may extend to ten lashes. 284 Explanation: A woman, who causes herself to miscarry, is within the meaning of this section. 207. Whoever uses force to any woman and thereby unintentionally causes her to miscarry, shall be punished with the payment of ghurrah. 285 208. Whoever with intent to cause miscarriage of a woman whether with child or not 286 does any act which causes the death of such woman, shall be punished: (a) with the payment of diyah; 287 or (b) if the act is done without the consent of the woman, with qisas. 288 209. (1) Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive and does by such act prevent that child from being born alive, shall, if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with - (a) Payment of ghurrah; and 282 Bauchi: “under the age of maturity”. Kano, Katsina: “has not attained puberty”. Kebbi: “under eighteen years of age”. No SPC adds “or to kill himself” after “commit suicide”. PC punishes abetment of suicide of persons similarly incapacitated, with death. In subsequent sections, omitted here and in all SPCs, PC also punishes other abetments of suicide with imprisonment of up to 10 years and fine, and punishes attempts to commit suicide with up to 1 year or fine or both. 283 Gombe omits “/carrying out”. Kebbi omits subsection (ii) altogether. PC: no separate section on abetment of homicide. 284 PC: 14 years or fine or both. Sokoto has “ghorrah (one twentieth of diyah)”. Kano and Katsina: “(ghurrah) compensation”. Kaduna punishment: ghurrah/ta’azir. 285 PC: up to 3 years or fine or both, but if the offender knew the woman was with child, up to 5 years or fine or both. Kano, Katsina: “(ghurrah) compensation”. 286 Kano, Katsina: “with intent to cause miscarriage of a pregnant woman”. 287 PC: up to 14 years and fine. 288 PC: up to life and fine. Jigawa: “(a) with the payment of qisas; or (b) if without intention with payment of diyah”. PC also has an explanation after this section omitted in all SPCs. 87
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