PART II
GENERAL EXCEPTIONS
Act done by person bound, or by mistake of fact believing himself bound, by law.
6. Nothing is an offence which is done by a person who is, 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 bound by law to do it.
Explanation—Nothing is said to be done or believed in good faith which is done or believed without due care and attention.
Illustration
A, an officer of a Court, being ordered by that Court to arrest B, and after due inquiry believing C to be B, arrests C. A has committed no offence.
Act of Syar'ie Judge when acting judicially.
7. Nothing is an offence which is done by a Syar'ie Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be given to him by law.
Act done pursuant to judgment or order of Court.
8. Nothing which is done in pursuance of, or which is warranted by, the judgment or order of a Court, if done whilst such judgment or order remains in force, is an offence, notwithstanding the Court may have no jurisdiction to pass such judgment or order, provided the person doing the act in good faith believes that the Court had such jurisdiction.
Act done by person justified or by mistake of fact believing himself justified by law.
9. Nothing is an offence which is done by a 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.
Illustration
A sees B commits what appears to A to be a qatl. A, to the best of his judgment, and in good faith, in the exercise of the power which the law gives to all persons for apprehending murderers in the act, seizes B in order to bring B before the authorities. A has committed no offence though it may turn out that B was acting in self-defence.
Involuntarily doing lawful act.
10. Nothing is an offence which is done involuntarily and without any criminal intention or knowledge, in the doing of a lawful act in a lawful manner by lawful means, and with proper care and caution.
Act likely to cause harm, but done without criminal intent, and to prevent other more serious harm.
11. Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it is done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other more serious harm to person or property.
Explanation—It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature, and so imminent, as to justify or excuse the risk of doing the act with the knowledge it was likely to cause harm.
Illustration
A enticed or induced or persuaded B, an unmarried female person to leave the custody of her parents or guardian for the purpose of preventing her from being made a prostitute. He does this with the intention, in good faith, of saving her from more serious harm. Here, if it be found that the harm to be prevented was of such a nature and so imminent as to excuse A's act, A is not guilty of an offence.
Act of child who is not mumaiyiz.
12. Nothing is an offence which is done by a child who is not mumaiyiz.
Act of child who is mumaiyiz but not baligh.
13. No hadd or qisas punishment may be imposed on any offence liable to hadd or qisas punishment, committed by a mumaiyiz child who is not baligh but may be punished with punishments other than hadd or qisas.
Act of person of unsound mind.
14. Nothing is an offence which is done by a person who, at the time of doing it by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that what he is doing is either wrong or contrary to law.
Act of person intoxicated against his will or without his knowledge or caused by medication.
15. (1) Nothing is an offence which is done by a person who, at the time of doing it, by reason of intoxication, does not know the nature of the act, or that what he is doing is either wrong or right, if the thing that caused him to be intoxicated was administered to him against his will or without his knowledge or he is intoxicated as the result of taking medicine for the purpose of treatment.
(2) For the purposes of this section, "intoxication" shall be deemed to include a state caused by narcotics or drugs.
Act not intended, and not known to be likely, to cause death or hurt, done by consent.
16. Nothing which is not intended to cause death or hurt, and which is not known by the doer to be likely to cause death or hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person above 15 years qamariah, who has given consent whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.
Illustration
A and B agree to fence with each other for amusement. This agreement implies the consent of each to suffer any harm which in the course of such fencing may be caused without foul-play; and if A, while playing fairly, hurts B, A commits no offence.
Act not intended to cause death, done by consent in good faith for person's benefit.
17. 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 express or implied to suffer that harm, or to take the risk of that harm.
Illustration
A, a surgeon, knowing that a particular operation is likely to cause the death of B, who suffers under a painful complaint, but not intending to cause B's death and intending, in good faith, B's benefit, performs that operation on B with B's consent. A has committed no offence.
Act done in good faith for benefit of person who is not baligh or of unsound mind, by or with consent of, guardian etc.
18. Nothing which is done in good faith for the benefit of a person who is not baligh, or of unsound mind, by or with consent of, either express or implied, the guardian or other person having lawful charge of that person, 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 that person:
Provided that this exception shall not extend to—
- (a) the intentional causing of death or the attempting to cause death;
- (b) the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or hurt or the curing of any disease or infirmity;
- (c) the voluntary causing of hurt or the attempting to cause hurt, unless it be for the purpose of preventing death or hurt, or the curing of any disease or infirmity;
- (d) the abetment of any offence, to the committing of which offence it would not extend.
Illustration
A, in good faith for his child's benefit without his child's consent has requested a surgeon to perform surgery on his child to remove stone, knowing it to be likely that the operation will cause the child's death, but not intending to cause the child's death. A is within the exception inasmuch as his object was the cure of the child.
Consent known to be given under fear or misconception etc.
19. A consent is not such a consent as is intended by any provision of this Order—
- (a) if the consent is given by a person under fear of injury or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception;
- (b) 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
- (c) if the consent is given by a person who is not baligh.
Acts which are offences independently of harm caused to person consenting, are not within the exceptions in sections 16, 17 and 18.
20. The exceptions in sections 16, 17, and 18 do not extend to acts which are offences independently of any harm which they may cause, or be intended to cause, or be known to be likely to cause, to the person giving the consent, or on whose behalf the consent is given.
Illustration
Causing miscarriage, unless caused in good faith for the purpose of saving the life of the woman, is an offence independently of any harm which it may cause, or be intended to cause, to the woman. Therefore, it is not an offence by reason of such harm, and the consent of the woman or of her guardian to the causing of such miscarriage does not justify the act.
Act done in good faith for benefit of person without consent.
21. Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person's consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit:
Provided that this exception shall not extend to—
- (a) the intentional causing of death or the attempting to cause death;
- (b) the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or hurt or the curing of any disease or infirmity;
- (c) the voluntary causing of hurt or the attempting to cause hurt, for any purpose other than the preventing of death or hurt;
- (d) the abetment of any offence, to the committing of which offence it would not extend.
Illustrations
- (a) A is thrown from his horse, and is insensible. B, a surgeon, finds that A requires to be trepanned. B, not intending A's death, but in good faith, for A's benefit, performs the trepan before A recovers his power of judging for himself. B has committed no offence.
- (b) C is carried off by a crocodile. D fires at the crocodile knowing it to be likely that the shot may kill C, but not intending to kill C, and in good faith intending C's benefit. D's shot gives C a mortal wound. D has committed no offence.
- (c) E, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child's guardian. E performs the operation in spite of the entreaties of the child, intending, in good faith, the child's benefit. E has committed no offence.
- (d) F is in a house which is on fire, with a child. People below hold out a blanket. F drops the child from the house-top, knowing it to be likely that the fall may kill the child but not intending to kill the child, and intending, in good faith, the child's benefit. Here, even if the child is killed by the fall, F has committed no offence.
Explanation—Mere pecuniary benefit is not benefit within the meaning of sections 17, 18 and 21.
Communication in good faith.
22. 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.
Illustration
A, a surgeon, in good faith, communicates to a patient in his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient's death.
Act to which person is compelled by threats.
23. Except committing qatl, nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause 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 a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint.
Explanation 1—A person who, of his own accord, or by reason of a threat of being beaten, joins a gang of robbers, knowing their character, is not entitled to the benefit of this exception on the ground of his having been compelled by his associates to do anything that is an offence by law.
Explanation 2—A person seized by a gang of robbers, and forced, by threat of instant death, to do a thing which is an offence by law for example, a smith compelled to take his tools and to force the door of a house for the gang-robbers to enter and commit hirabah, is entitled to the benefit of this exception.
Act causing slight harm.
24. Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm.
Right of private defence
Nothing done in private defence etc. is an offence.
25. Nothing is an offence which is done in the exercise of the right of private defence and the right of a person.
Right of private defence of body and property.
26. Every person has a right, subject to the restrictions contained in section 28, to defend—
- (a) his own body, and the body of his wife and descendant, against any offence affecting the human body;
- (b) the property of himself, the property of his wife or descendant, whether movable or immovable, against any act which is an offence falling under the definition of sariqah or hirabah, or which is an attempt to commit sariqah or hirabah.
Right of private defence against act of person of unsound mind etc.
27. When an act, which would otherwise be. a certain offence is not that offence, by reason of not being a mumaiyiz, 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.
Illustration
A under the influence of madness, attempts to commit qatl against B. A is guilty of no offence, but B as the same right of private defence which he would have if A were sane.
Acts against which there is no right of private defence.
28. (1) There is no right of private defence against an act which does not reasonably cause the apprehension of death or of hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law.
(2) There is no right of private defence against an act which does not reasonably cause the apprehension of death or of hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law.
(3) There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
(4) The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
Explanation 1—A person is not deprived of the right of private defence against an act done or attempted to be done by a public servant, as such, unless he knows or has reason to believe that the person doing the act is such public servant.
Explanation 2—A person is not deprived of the right of private defence against an act done or attempted to be done by the direction of a public servant unless he knows or has reason to believe that the person doing the act is acting by such direction or unless such person states the authority under which he acts or, if he has authority in writing, unless he produces such authority, if demanded.
When right of private defence of body extends to causing death.
29. The right of private defence of the body extends, subject to the restrictions mentioned in section 28, to the voluntary causing of death, or of any other harm, to the assailant if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated—
- (a) such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
- (b) such an assault as may reasonably cause the apprehension that hurt will otherwise be the consequence of such assault;
- (c) an assault with the intention of committing zina bil-jabar;
- (d) an assault with the intention of committing liwat;
- (e) an assault with the intention of abducting.
When such right extends to causing any harm other than death.
30. If the offence be not of any of the descriptions enumerated in section 29, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 28, to the voluntary causing to the assailant of any harm other than death.
Commencement and continuance of right of private defence of body.
31. The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed and it continues as long as such apprehension of danger to the body continues.
When right of private defence of property extends to causing death.
32. The right of private defence of property extends, under the restrictions mentioned in section 28, to the voluntary causing of death, or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated—
- (a) hirabah;
- (b) sariqah, under such circumstances as may reasonably cause apprehension that death or hurt will be the consequence, if such right of private defence is not exercised.
When such right extends to causing any harm other than death.
33. If the offence, the committing of which or the attempting to commit which, occasions the exercise of the right of private defence, be sariqah that is not of any of the descriptions enumerated in section 32, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 28, to the voluntary causing to the wrongdoer of any harm other than death.
Commencement and continuance of right of private defence of property.
34. (1) The right of private defence of property commences when a reasonable apprehension of danger to the property commences.
(2) The right of private defence of property against sariqah continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained or the property has been recovered.
(3) The right of private defence of property against hirabah continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint, or as long as the fear of instant death, of instant hurt, or of instant personal restraint continues.
Right of private defence against deadly assault when there is risk of harm to innocent person.
35. If, 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.
Illustration
A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence if by so firing he harms any of the children.
Exemption from this Part.
36. This Part shall only apply if not inconsistent with any other provisions of this Order.