- (e) with the consent of the victim, if the consent is given by a person under a misconception of fact and the person doing the act knows, or has reason to believe, that the consent was given in consequence of such misconception;
Illustration
A, a patient, asks for help from B, a bomoh (traditional healer). B told A that for medical purposes, anything is allowed to be done by any means. A, because of a misconception of fact believes B, consents to having sexual intercourse with B. B has committed the· offence under this section.
- (f) with the consent of the victim, if the consent is given by a person who, from unsoundness of mind or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or if the consent is given by a person who has not attained the age of baligh.
Illustrations
- (a) A who is of unsound mind is persuaded by B to have sexual Intercourse with him. A consents to having sexual intercourse with B. B has committed the offence under this section.
- (b) C deliberately adds drugs to D's drinks to intoxicate D. C invites D to have sexual intercourse with him. D because of intoxication, consents to having sexual intercourse with C. C has committed the offence under this section.
- (c) E who has not attained the age of baligh is persuaded by F. by promising her gifts, to have sexual intercourse with him. E consents to having sexual intercourse with F. F has committed the offence under this section.
Explanation—Penetration by hasyafah or qadar thereof is sufficient to constitute the sexual intercourse necessary for the offence of zina bil-jabar.
Punishment for zina bil-jabar.
76. (1) Any person who commits zina bil-jabar and it is proved either by ikrar of the accused, or by syahadah of at least four syahid according to Hukum Syara' other than the evidence of the victim after the Court is satisfied having regard to the requirements of tazkiyah al syuhud, is guilty of an offence and shall be liable on conviction to hadd punishment as follows—
- (a) if he is muhshan, stoning to death witnessed by a group of Muslims;
- (b) if he is ghairu muhshan, whipping with 100 strokes witnessed by a group of Muslims and to imprisonment for one year.
1707
