CHAPTER II
CRIMINAL RESPONSIBILITY
63. Basic criminal responsibility
(i) There shall be no criminal responsibility except upon a mukallaf.
(ii) There shall be no criminal responsibility unless an unlawful act or omission is done intentionally or negligently.
64. Common knowledge
A person is presumed, unless the contrary is proved, to have knowledge of any material fact if such fact is a matter of common knowledge.
65. Presumption of knowledge of an intoxicated person
A person who does an act in a state of voluntary intoxication is presumed to have the same knowledge as he would have had if he had not been intoxicated.
66. Act done by person justified by law
Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law, in good faith believes himself to be justified by law in doing it.
Illustrations:
(a) A an officer of a court of justice being ordered by that court to arrest Y and after due enquiry believing Z to be Y arrests Z. A has committed no offence.
(b) A sees Z commit what appears to A to be culpable homicide. A in the exercise to the best of his judgment exerted in goodfaith of the power which the law gives to all persons of arresting murderers seizes Z in order to bring him before the proper authorities. A has committed no offence, though it may turn out that Z was acting in selfdefence.
67. Act of court of justice
Nothing is an offence which is done by a person when acting judicially as a court of justice or as a member of a court of justice in the exercise of any power which is or which in good faith he believes to be given to him by jaw.
68. Act done pursuant to the judgment or order of court
Nothing which is done in pursuance of or which is warranted by the judgement or order of a court of justice, if done whilst such judgement or order remains in force, is an offence, notwithstanding that the court may have had no jurisdiction to pass such judgement or order, provided the person doing the act in good faith believes that the court had such jurisdiction.
69. Accident in doing a lawful act
Nothing is an offence which is done by accident or misfortune and without any criminal intention or knowledge in the course of doing a lawful act in a lawful manner by lawful means and with proper care and caution.
70. Act likely to cause injury but done without criminal intent and to prevent other injury or to benefit person
(1) Nothing is an offence by reason of an injury which it may cause or be intended by the doer to cause or be known by the doer to be likely to cause, if it be done without any criminal intention to cause injury and in good faith for the purpose of preventing or avoiding other injury to person or property or of benefiting the person to whom injury is or may be caused:
Provided:-
(a) that, having regard to all the circumstances of the case, the doing of the thing was reasonable; and
(b) that where the circumstances so require the the thing is done with reasonable care and skill.
(2) This section shall not apply to the intentional causing of death or to the attempting to cause death in order to prevent or avoid injury to property only except as is provided for in section 90.
(3) The death of a person shall under no circumstances be deemed to be for the benefit of that person.
(4) Mere pecuniary benefit is not benefit within the meaning of this section.
71. Act of a child
No act is an offence which is done:-
(a) by a child under seven years; or
(b) in cases of hudud, by a child below the age of taklif.
72. Act of a person of unsound mind or person asleep
Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, or sleep, is incapable of knowing the nature or the consequences of the act or he is doing what is either wrong or contrary to law.
73. Involuntary intoxication
Nothing is an offence which is done by a person who, at the time of doing it, is by reason of intoxication caused by something administered to him without his knowledge or against his will, incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.
74. Act not intended to cause death or grievous hurt done by consent
(1) No act is an offence by reason of the injury it has caused to the person or property of any person who being above the age of taklif has voluntarily and with understanding given his consent expressed or implied to that act.
(2)This section shall not apply to acts which are likely to cause death or grievous hurt, nor to acts which constitute offences independently of any injury which they are capable of causing to the person who has given his consent or to his property.
75. Act not intended to cause death done by consent for a person's benefit
Nothing which is not intended to cause death is an offence by reason of any harm which it may cause or be intended by the doer to cause or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether expressed or implied, to suffer that harm, or to take the risk of that harm.
76. Correction of child, pupil, servant or wife
(1) Nothing is an offence which does not amount to the infliction of grievous hurt upon any person and which is done:-
(a) by a parent or guardian for the purpose of correcting his child or ward such child or ward being under eighteen years of age, or
(b) by a school master for the purpose of correcting a child under eighteen years of age entrusted to his charge; or
(c) by a master for the purpose of correcting his servant or apprentice such servant or apprentice being under eighteen years of age; or
(d) by a husband for the purpose of correcting his wife.
(2) No correction is justifiable which is unreasonable in kind or in degree, regard being to the age and physical and mental condition of the person on whom it is inflicted; and no correction is justifiable in the case of a person who, by reason of tender years or otherwise, is incapable of understanding the purpose for which it is inflicted.
77. Communication made in good faith
No communication made in good faith is an offence by reason of any harm to the person to whom it is made, if it is made for the benefit of that person.
78. Act to which a person is compelled by threats
Except culpable homicide, grievous hurt and offences against the State punishable with death, no act is an offence which ia done by a person who is compelled to do it by coercion or by threat of death or imminent grievous hurt to his person or family or serious injury to his property, which at the time of doing it reasonably caused the apprehension that instant death to that person will otherwise be the consequence:
Provided that the person doing the act did not, of his own accord or from apprehension of harm to himself short of instant death, placed himself in the situation by which he became subject to such compulsion.
79. Non-voluntary Act
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.
80. Act of necessity
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.
81. Act causing slight harm
Nothing is an offence by reason that it causes or 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 .
82. Presumption of the right of diyyah; damages etc
Nothing contained in the provisions of sections 66-99 shall prejudice the right of diyyah or damages in appropriate cases.
The Right of Private Defence
83. Things done in private defence
Nothing is an offence which is done in the lawful exercise of the right to private defence.
84. Right of private defence
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'ddi) or which is an attempt to commit theft (sariqah), robbery (hirabah), mischief (fasad) or criminal trespass (ta'addi).
85. Right of private defence against act of a person of unsound mind etc
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, every person has the same right of private defence against that act which he would have if the act were that offence.
Illustrations:
(a) Z under the influence of madness attempts to kilI 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.
86. General limit to right of private defence
The right of private defence in no case extends to the inflicting of more harm than is necessary to inflict for the purpose of defence.
87. No right of private defence when protection of public authorities available
There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
88. Limitation of right of private defence against act of public servant
There is no right of private defence against an act which does not reasonably cause 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.
89. When right of private defence of the body extends to causing death
The right of private defence of the body extends, under the restrictions mentioned in sections 86 and 87, 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.
90. When right of private defence of property extends to causing death
The right of private defence of property extends, under the restrictions mentioned in sections 63, and 64, 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) housebreaking 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.
91. Right of private defence against deadly assault when there is risk of harm to innocent person
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.
92. General offences and punishments
Any act or omission which is not specifically mentioned in this Shari'ah Penal Code but is otherwise declared to be an offence under the Qur'an, Sunnah and Ijtihad of the Maliki School of Islamic thought shall be an offence under this code and such act or omission shall be punishable:
(a) With imprisonment for a term which may extend to 5 years, or
(b) With caning which may extend to 50 lashes, or
(c) With fine which may extend to N5,000.00 or with any two of the above punishments.