Syariah Penal Code Order, 2013/Part IV Chapter I

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PART IV
OFFENCES

Chapter I
SARIQAH, HIRABAH, ZINA, ZINA BIL-JABAR, LIWAT, QAZAF, DRINKING INTOXICATING DRINKS AND IRTIDAD

Hadd.

52. (1) For the purposes of this Order, "hadd" means punishment or penalty as ordained by the Al-Qur'an or Sunnah Rasulullah Sallallahu 'Alaihi Wa Sallam for the offences of sariqah, hirabah, zina, qazaf, drinking intoxicating drinks and irtidad.

(2) Zina bil-jabar and liwat are included in the meaning of zina liable to hadd punishment.

Sariqah

Sariqah and hirz.

53. For the purposes of this Order—

"hirz" means custody of a property according to its suitability based on Hukum Syara';

"sariqah" means is an act of removing by stealth a movable property from the hirz or possession of its owner without his consent and with the intention to deprive him thereof.

Value of nisab for sariqah.

54. The value of nisab for sariqah liable to hadd punishment is 1 dinar.

Explanation—The value for nisab of sariqah liable to hadd punishment is 1 dinar (4.25 grammes of gold) or its price in the local currency at the time the offence of sariqah was committed.

Illustration

Where the market price for 1 gramme of gold is $80, the value of nisab for sariqah liable to hadd punishment in Brunei Darussalam currency is $340.

Punishment for sariqah.

55. (1) Any person who commits sariqah, where the value of the property amounts to or exceeds nisab and the sariqah is proved either by ikrar of the accused or by syahadah of at least two syahid in accordance with Hukum Syara' other than the victim's evidence, 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) for a first offence, amputation of his right hand from the joint of the wrist;

(b) for a second offence, amputation of his left foot up to the ankle; and

(c) for a third or subsequent offence, imprisonment for a term not exceeding 15 years.

(2) Any mukallaf who commits sariqah in a group and the aggregate value of the stolen property is such that, if the property is divided equally amongst such of them as have entered the hirz, each one of them gets a share which amounts to, or exceeds, the nisab, whether or not each one of them has moved the sariqah property or any part thereof and the sariqah is proved as provided under subsection (1) is guilty of an offence and shall be liable on conviction to the same punishment as provided under subsection (1).

(3) Any person who commits sariqah—

(a) which is proved by evidence other than that provided under subsection (1); or

(b) in any circumstances stated in sections 56 and 57,

is guilty of an offence and shall be liable on conviction to a fine not exceeding $40,000, imprisonment for a term not exceeding 10 years or both, and for the second or subsequent offence, to a fine not exceeding $56,000, imprisonment for a term not exceeding 14 years or both.

When hadd punishment for sariqah offences not imposed.

56. Hadd punishment for sariqah offence shall not be imposed in any of the following circumstances—

(a) when the stolen property is less than the value of nisab;

(b) when the offender is not mukallaf;

(c) when the owner of the stolen property has not taken sufficient precaution to guard such property against theft, having regard to the nature of the property and place where the property is kept or left not in the hirz;

(d) when the offender has not obtained full possession of the stolen property, although its owner has already been deprived of its custody or possession;

Illustration

A buys a watch, owned by B, from B. A pays part of the price of the watch before concluding the transfer of possession, A steals the watch. A is not liable to hadd punishment.

(e) when the stolen property is of trifling in nature and can be found in abundance anywhere or is of perishable nature;

Illustration

A steals fruits in a garden which belongs to B and eats the stolen fruit in that area or place. A is not liable to hadd punishment.

(f) when the stolen property is of no value according to Hukum Syara' such as intoxicating drink or instruments for amusement;

(g) when the offence is committed by a creditor in respect of the property of his debtor who refuses to pay the debt:

Provided that the value of the stolen property shall not exceed the amount of the debt, or the value of the stolen property exceeds the amount of the debt but does not exceed the nisab;

(h) when the offence is committed in circumstances of extreme difficulties such as war, famine, disease and natural disaster;

(i) when the offence is committed within a family such as a wife stealing from her husband and vice versa, or son stealing from his father and vice versa;

(j) when the offence is committed by a group of persons, the share of each offender after dividing the stolen property or the proceeds thereof is less than the nisab;

(k) when the offender returns the stolen property or the value of the stolen property before the execution of hadd punishment;

(l) when the owner of the stolen property denies that his property has been stolen, notwithstanding the offender made an ikrar that he stole it;

(m) when the offender makes an objection acceptable by Hukum Syara' against the syahid;

Illustration

A was charged with stealing B's property. Two syahid gave syahadah to prove the truth. A proves to Court that both are fasiq. A is not liable to hadd punishment.

(n) when the stolen property is, or the circumstances in which the offence is committed are, such that there is no hadd punishment liable according to Hukum Syara';

(o) when the stolen property is a common property;

Explanation—Common property means the movable property which is provided for the benefits of the general public.

(p) when the offender's right or left hand is not functional, maimed or cut.

Property in different hirz.

57. If sariqah is committed from the same hirz in more than one transaction, or from more than one hirz, and the value of the sariqah property in each case is less than the nisab, it is not sariqah liable to hadd punishment even if the value of the property involved in all cases adds up to or exceeds the nisab.

Illustration

(a) A enters a house occupied by a family and commits sariqah from various rooms and the value of all the property removed adds up to or exceeds nisab. Such sariqah is liable to hadd punishment even though the value of the property removed from any of the rooms does not amount to the nisab. If the house is occupied by more than one family and the value of all the property removed from the hirz of anyone family is less than the nisab, then such sariqah is not liable to hadd punishment, even though the value of all the properties removed adds up to or exceeds the nisab.

(b) A enters a house several times to commit sariqah in the house, on each occasion the value of the property removed does not amount to nisab. Such sariqah is not liable to hadd punishment even though the value of all the properties removed adds up to or exceeds the nisab.

Punishment for committing qatl or causing hurt to person during commission of sariqah.

58. Any person who commits qatl or causes hurt to a person during the commission of sariqah is guilty of an offence and shall be liable on conviction in addition to the punishment of such sariqah to punishment of qisas, diyat or arsy in accordance with Hukum Syara'.

Attempt to commit sariqah.

59. Any person who attempts to commit sariqah or attempts to cause the commission of sariqah is guilty of an offence and shall be liable on conviction to a fine not exceeding $20,000, imprisonment for a term not exceeding 5 years or both.

Illustration

A makes an attempt to commit sariqah some jewelleries by breaking open a box and finds after so opening the box that there is no jewellery in it. A has done an act of attempting to commit sariqah, he has therefore committed an offence under this section.

Abetting commission of sariqah.

60. (1) Any person who abets the commission of sariqah under section 55(1) is guilty of an offence and shall be liable on conviction to a fine not exceeding $40,000, imprisonment for a term not exceeding 10 years or both.

(2) Any person who abets the commission of sariqah under section 55(3) is guilty of an offence and shall be liable on conviction to a fine not exceeding $28,000, imprisonment for a term not exceeding 7 years or both.

Return of sariqah property.

61. (1) Sariqah property shall be returned to the victim if that property is in the original form and is identifiable.

(2) If the sariqah property is lost or used while it is in the custody of the offender, the offender shall be ordered to pay compensation and it shall become a debt which is payable to the owner.

Hirabah

Hirabah.

62. For the purposes of this Order, "hirabah" means an act of taking another person's property by force or threat of the use of force done by a person or a group of persons armed with any weapon or instrument capable of being used as weapon.

Punishment for hirabah.

63. (1) Any person who commits hirabah and it is proved either by ikrar of an accused or by syahadah of at least two syahid in accordance with Hukum Syara' other than the victim's evidence, 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) death, if during the commission of hirabah, qatl has been committed, with or without taking property, whether or not the value of the property amounts to or less than nisab;

(b) (i) amputation of the right hand from the wrist and of the left foot from the ankle, if during the commission of hirabah, the value of property taken amounts to or exceeds nisab;

(ii) when the offence of hirabah has been committed jointly by more than one person, the punishment for the amputation of hand and foot shall be imposed only if the value of the share of each one of them amounts to or exceeds nisab;

(c) qisas or arsy in accordance with the nature of the hurt as specified in the Second, Third and Fourth Schedules or as determined by the Court.

(2) Any person who commits hirabah—

(a) which is proved by evidence other than that provided under subsection (1); or

(b) in any circumstances provided under section 64,

is guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding 30 years and to whipping not exceeding 40 strokes.

When punishment of amputation of hand and foot in hirabah shall not be imposed.

64. The punishment for the amputation of hand and foot shall not be imposed in cases which hadd punishment may not be imposed for sariqah, and the provisions of section 56, in accordance with the appropriate amendment, shall apply to such hirabah cases.

Attempt to commit hirabah.

65. Any person who attempts to commit hirabah or attempts to cause the commission of hirabah is guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding 15 years and whipping not exceeding 30 strokes.

Abetting commission of hirabah.

66. (1) Any person who abets the commission of hirabah under section 63(1) is guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding 30 years and whipping not exceeding 40 strokes.

(2) Any person who abets. the commission of hirabah under section 63(2) is guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding 15 years and whipping not exceeding 20 strokes.

Return of hirabah property.

67. The provisions of section 61, in accordance with the appropriate amendment, shall apply to the returning of property taken during the commission of hirabah.

Zina

Zina.

68. (1) A man and a woman are said to commit zina if they willfully had sexual intercourse without being validly married to each other or such intercourse is not syubhah intercourse.

Explanation—Penetration by hasyafah or qadar thereof is sufficient to constitute the sexual intercourse necessary for the offence of zina.

(2) In this section—

"syubhah intercourse" means a sexual intercourse performed with a persumption that it is a valid marriage but in actual fact the marriage is not valid (fasid) or sexual intercourse occurred by mistake;

"sexual intercourse occurred by mistake" means sexual intercourse between a man and a woman on the assumption that the woman is his wife and the man is her husband, when in actual fact she is not his wife and he is not her husband.

Illustration

At night, in the dark, A and B have sexual intercourse. A thinks B is his wife and B thinks A is her husband, when in fact B is not A's wife and A is not B's husband. A and B did not commit the offence under this section.

Punishment for zina.

69. (1) Any Muslim who commits zina and it is proved either by ikrar of the accused, or by syahadah of at least four syahid according to Hukum Syara' 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; or

(b) if he is ghairu muhshan, whipping with 100 strokes witnessed by a group of Muslims and imprisonment for a term of one year.

(2) Any Muslim who commits zina and it is proved by evidence other than that provided under subsection (1) is guilty of an offence and shall be liable on conviction—

(a) if he is muhshan, whipping with not exceeding 30 strokes and imprisonment for a term not exceeding 7 years; or

(b) if he is ghairu muhshan, whipping with not exceeding 15 strokes and imprisonment for a term not exceeding 3 years.

(3) Any non-Muslim who commits zina with a Muslim and it is proved either by ikrar of the accused, or by syahadah of at least four syahid according to Hukum Syara' 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 the same punishment as provided under subsection (1).

(4) Any non-Muslim who commits zina with a Muslim and it is proved by evidence other than that provided under subsection (3) is guilty of an offence and shall be liable on conviction to the same punishment as provided in subsection (2).

Punishment for zina where the offender is not mukallaf or has not attained age of baligh.

70. Where any person who is not mukallaf or has not attained the age of baligh commits zina and—

(a) it is proved either by ikrar of the accused, or by syahadah of at least four syahid according to Hukum Syara' 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 whipping not exceeding 30 strokes and shall be detained in any rehabilitation centre as the Court thinks appropriate for a term not exceeding 3 years; or

(b) it is proved by evidence other than that provided under paragraph (a) is guilty of an offence and shall be liable on conviction to whipping not exceeding 15 strokes and shall be detained in any rehabilitation centre as the Court thinks appropriate for a term not exceeding 3 years.

Attempt to commit zina.

71. Any person who attempts to commit zina or attempts to cause the commission of zina is guilty of an offence and shall be liable on conviction—

(a) if he is muhshan, to a fine not exceeding $14,000, imprisonment for a term not exceeding 3 years or both, and to whipping not exceeding 20 strokes; or

(b) if he is ghairu muhshan, to a fine not exceeding $8,000, imprisonment for a term not exceeding 2 years or both, and to whipping not exceeding 10 strokes.

Illustration

A, a mukallaf man, lies on a bed with B, a mukallaf woman who is not A's wife. A and B are committing the offence under this section.

Attempt to commit zina where offender is not mukallaf or has not attained age of baligh.

72. Any person, who is not mukallaf or has not attained the age of baligh, who attempts to commit zina or attempts to cause the commission of zina is guilty of an offence and shall be liable on conviction to whipping not exceeding 10 strokes and shall be detained in any rehabilitation centre as the Court thinks appropriate for a term not exceeding one year.

Abetting commission of zina.

73. (1) Any person who abets the commission of zina under section 69(1) is guilty of an offence and shall be liable on conviction to a fine not exceeding $28,000, imprisonment for a term not exceeding 7 years or both and, to whipping not exceeding 40 strokes.

(2) Any person who abets the commission of zina under section 69(2) or (4) is guilty of an offence and shall be liable on conviction to a fine not exceeding $16,000, imprisonment for a term not exceeding 4 years or both, and to whipping not exceeding 20 strokes.

Abetment to commit zina where the offender is not mukallaf or has not attained age of baligh.

74. Any person who is not mukallaf or has not attained the age of baligh who abets the commission of zina is guilty of an offence and shall be liable on conviction to whipping not exceeding 15 strokes and shall be detained in any rehabilitation centre as the Court thinks appropriate for a term not exceeding 3 years.

Zina bil-jabar

Zina bil-jabar.

75. A person is said to commit zina bil-jabar if he or she has sexual intercourse with a woman or a man, as the case may be, to whom he or she is not validly married, in any of the following circumstances

(a) against the will of the victim;

(b) without the consent of the victim;

(c) with the consent of the victim, when the consent has been obtained with threat by putting the victim in fear of death or hurt;

(d) with the consent of the victim, when the offender knows that the offender is not validly married to the victim and that the consent is given because the victim believes that the offender is another person to whom the victim is validly married or the victim believes herself or himself to be validly married to the offender;

Illustrations

(a) A, as the wali mujbir to his daughter B, marries her off to C. B have never met C. D came to B and claims to be her husband. B believes that D is her husband and consents to having sexual intercourse with D. D has committed the offence under this section.

(b) E and F are identical twin sisters. G is married to E. F claims that she is G's wife and G believes that F is his wife. G consents to having sexual intercourse with F. F has committed the offence under this section.

(c) H has four wives. H married I who does not know that H already has four wives. I consents to having sexual intercourse with H because she believes that their marriage was valid. H has committed the offence under this section.

(d) J is still in her 'iddah period. K does not know that J is still in her 'iddah period and marries her. K consents to having sexual intercourse with J because he believes that their marriage was valid. J has committed the offence under this section.

(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.

(2) Any person who commits zina bil-jabar and it is proved by evidence other than that provided under subsection (1) is guilty of an offence and shall be· liable on conviction—

(a) if he is muhshan, to imprisonment for a term not exceeding 30 years and whipping with not exceeding 40 strokes;

(b) if he is ghairu muhshan, to imprisonment for a term not exceeding 15 years and whipping with not exceeding 20 strokes.

Punishment for zina bil-jabar where the offender is not mukallaf or has not attained age of baligh.

77. Where any person who is not mukallaf or has not attained the age of baligh commits zina bil-jabar and—

(a) 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 whipping with 40 strokes and shall be detained in any rehabilitation centre as the Court thinks appropriate for a term not exceeding 5 years; or

(b) it is proved by evidence other than that provided under paragraph (a) is guilty of an offence and shall be liable on conviction to whipping with 20 strokes and shall be detained in any rehabilitation centre as the Court thinks appropriate for a term not exceeding 5 years.

Attempt to commit zina bil-jabar.

78. Any person who attempts to commit zina bil-jabar or attempts to cause the commission of zina bil-jabar is guilty of an offence and shall be liable on conviction—

(a) if he is muhshan, to imprisonment for a term not exceeding 15 years and whipping with 20 strokes;

(b) if he is ghairu muhshan, to imprisonment for a term not exceeding 7 years and whipping with 20 strokes.

Attempt to to commit zina bil-jabar where offender is not mukallaf or has not attained age of baligh.

79. Any person, who is not mukallaf or has not attained the age of baligh, who attempts commit zina bil-jabar or attempts to cause the commission of zina bil-jabar is guilty of an offence and shall be liable on conviction to whipping with 20 strokes and shall be detained in any rehabilitation centre as the Court thinks appropriate for a term not exceeding 4 years.

Abetting commission of zina bil-jabar.

80. (1) Any person who abets the commission of zina bil-jabar under section 76(1) is guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding 30 years and whipping with 40 strokes.

(2) Any person who abets the commission of zina-bil-jabar under section 76(2) is guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding 15 years and whipping with 20 strokes.

Abetment to commit zina bil-jabar where offender is not mukallaf or has not attained age of baligh.

81. Any person, who is not mukallaf or has not attained the age of baligh, who abets the commission of zina bil-jabar is guilty of an offence and shall be liable on conviction to whipping with 20 strokes and shall be detained in any rehabilitation centre as the Court thinks appropriate for a term not exceeding 5 years.

Liwat

Liwat.

82. (1) Any person who commits liwat is guilty of an offence and shall be liable on conviction to the same punishment as provided for the offence of zina.

(2) For the purposes of this Order, "liwat" means sexual intercourse between a man and another man or between a man and a woman other than his wife, done against the order of nature that is through the anus.

Proof of liwat.

83. Liwat shall be proved in the same manner as provided for the offence of zina.

Attempt to commit liwat.

84. Any person who attempts to commit liwat or attempts to cause the commission of liwat is guilty of an offence and shall be liable on conviction to the same punishment as provided under the section 71 or 72, as the case may be.

Abetting commission of liwat.

85. Any person who abets the commission of liwat is guilty of an offence and shall be liable on conviction to the same punishment as provided under the section 73 or 74, as the case may be.

Offences relating to zina, zina bil-jabar or liwat

Withdrawal of ikrar in cases of zina, zina bil-jabar or liwat.

86. (1) Conviction of zina, zina bil-jabar or liwat through ikrar of ah accused may be withdrawn by the accused at any time, even though at the time when he is undergoing punishment.

(2) If an ikrar is withdrawn before the execution of hadd punishment, the accused shall cease to be liable to such punishment and if he withdraws that ikrar at the time when he is undergoing the punishment, the punishment shall forthwith cease.

(3) If at any time before or at the time when the hadd punishment is executed the accused managed to get away from the authority, he shall be considered to have withdrawn that ikrar; the provision of subsection (2) shall thereby apply.

Withdrawal of evidence in cases of zina, zina bil-jabar or liwat.

87. (1) If a syahid withdraws his evidence before the execution of hadd punishment on the accused, the accused shall cease to be liable to such punishment and if it is withdrawn at the time when the accused is undergoing the punishment, the punishment shall forthwith cease.

(2) In the case of zina, zina bil-jabar or liwat, where a syahid—

(a) declines to give evidence;

(b) gives evidence contrary to the charge;

(c) gives evidence in support of the charge but subsequently withdraws such evidence; or

(d) is disabled according to Hukum Syara',

and by reasons mentioned in paragraph (a), (b), (c) or (d) or other reasons, the number of syahid in support of the charge becomes less than four, the charge of zina, zina bil-jabar or liwat against the accused shall remain unproved and the accused shall cease to be liable to hadd punishment, but may be punishable with the punishment as provided under section 69(2), 69(4) or 76(2).

Accuser and witnesses not liable to qazaf.

88. An accuser and witnesses who give evidence in good faith, either in syahadah or bayyinah before the Court, to prove the offence of zina, zina bil-jabar or liwat which does not fulfill the requirements of Hukum Syara' for the hadd punishment shall not be charged with qazaf.

Accuser and witnesses liable to qazaf.

89. An accuser and witnesses who give evidence not in good faith, either in syahadah or bayyinah before the Court, to prove the offence of zina, zina bil-jabar or liwat which does not fulfill the requirements of Hukum Syara' for the hadd punishment shall be charged with qazaf.

Ityan al-mayyitah.

90. (1) Any person who commits ityan al-mayyitah is guilty of an offence and shall be liable on conviction to a fine not exceeding $40,000, imprisonment for a term not exceeding 10 years, whipping not exceeding 40 strokes or a combination of any two of the punishment.

(2) In this section, "ityan al-mayyitah" means an offence of performing sexual intercourse with a dead person, whether such dead person is male or female.

Ityan al-bahimah.

91. (1) Any person who commits ityan al-bahimah is guilty of an offence and shall be liable on conviction to a fine not exceeding $40,000 imprisonment for a term not exceeding 10 years, whipping not exceeding 40 strokes or a combination of any two of the punishment.

(2) In this section, "ityan al-bahimah" means an offence of performing sexual intercourse with an animal.

Musahaqah.

92. (1) Any Muslim woman who commits musahaqah is guilty of an offence and shall be liable on conviction to a fine not exceeding $40,000, imprisonment for a term not exceeding 10 years, whipping not exceeding 40 strokes or combination of any two of the punishment.

(2) Any non-Muslim woman who commits musahaqah with a Muslim woman is guilty of an offence and shall be liable on conviction to a fine not exceeding $40,000, imprisonment for a term not exceeding 10 years, whipping not exceeding 40 strokes or a combination of any two of the punishment.

(3) In this section, "musahaqah" means any physical activities between a woman and another woman which would amount to sexual acts if it is done between a man and a woman, other than penetration.

Refusal to perform li'an.

93. (1) A husband who accuses his wife of commiting zina and he or his wife refuses to perform li'an after being ordered by the Court to undergo li'an, the husband or the wife shall be imprisoned until—

(a) the husband has agreed to perform li'an or be punished with hadd punishment for committing qazaf; or

(b) the wife has agreed to perform li'an or accepted the husband's accusation of zina and if the wife accepted the husband's accusation, she is guilty of the offence of zina and shall be liable on conviction to hadd punishment for committing zina.

(2) For the purposes of this section and section 95, "li'an" means an accusation of zina on oath in accordance with Hukum Syara' made by a husband against his wife whilst the wife on oath in accordance with Hukum Syara' rejects such accusation and the accusation and rejection are made before the Court.

Pregnant out of wedlock.

94. (1) Any Muslim woman who is pregnant or who gives birth to a child out of wedlock is guilty of an offence and shall be liable on conviction—

(a) if she is muhshan, to a fine not exceeding $8,000, imprisonment for a term not exceeding 2 years or both;

(b) if she is ghairu muhshan, to a fine not exceeding $4,000, imprisonment for a term not exceeding one year or both.

(2) Any Muslim woman who gives birth to a fully-developed child within a period of less than 6 months qamariah and 2 lahzah after her marriage shall be deemed to have given birth to the child out of wedlock.

(3) For the purpose of subsection (1), a woman is said to be pregnant out of wedlock or has given birth to a child out of wedlock if—

(a) she was not married;

(b) the marriage is not a syubhah marriage;

(c) she has not been raped;

(d) the child is born less than 6 months qarnariah and 2 lahzah after her valid marriage; or

(e) the child is born more than 4 years qamariah after divorce or dissolution of marriage and she has not remarried.

(4) The burden of proof to rebut any of the paragraph (a), (b), (c), (d) or (e) in subsection (3) is upon the woman.

(5) Any man who impregnates a Muslim woman out of wedlock, whether or not such woman has given birth to a child, is guilty of an offence and shall be liable on conviction to a fine not exceeding $8,000, imprisonment for a term not exceeding 2 years or both.

Qazaf

Qazaf.

95. Except in cases that require li'an, "qazaf" means an accusation of zina, zina bil-jabar or liwat whether orally or documentarily not proved by four syahid against a Muslim who is mukallaf and known as a person who is clear of zina, zina bil-jabar or liwat.

Condition for person who commits qazaf and person liable to qazaf.

96. (1) A person who commits qazaf shall be a person who is a mukallaf.

(2) A person liable to qazaf shall be a muhshan and if the person liable to qazaf is dead person, that person shall be ascertained.

Illustration

A made a statement that B is a child born out of wedlock. Here, A has committed qazaf against B's mother. If B's mother has died, A shall determine the name of B's mother in his statement.

(3) In this section, "muhshan" means a Muslim who is of sound mind and has attained the age of baligh, clear of zina, zina bil-jabar or liwat, capable of having sexual intercourse and such conditions shall remain until he is liable to the hadd punishment.

Manner of committing qazaf.

97. (1) Qazaf may be committed by making a statement expressly such as to say that a person has committed zina, zina bil-jabar or liwat or making a statement impliedly such as to say that a person is not the father or not the offspring of a particular person.

(2) The statement under subsection (1) shall be deemed to be qazaf unless it is proved by syahadah in accordance with the requirements of conviction of zina, zina bil-jabar or liwat liable to hadd punishment and if such statement is unproved, the person who makes the accusation shall be guilty of an offence of qazaf but if such statement is proved, the person against whom the statement is made shall be guilty of an offence of zina, zina bil-jabar or liwat.

Illustration

A made a statement that B has committed zina. B made a complaint to Court that A has made a statement accusing him of committing zina and brought two syahid to support his complaint. If B's complaint is proved, then A has committed the offence of qazaf and may be punished for committing qazaf. However, if A is able to prove his statement by bringing four syahid, A will be released from the accusation of committing qazaf, As a result, B will be convicted of committing zina and may be punished for committing such offence.

(3) The statement under subsection (1) shall be deemed to be unproved if one or more of the four syahid called to give evidence by syahadah in support of the statement refuse to testify or do testify but their evidence are against such statement, and in such case each of the syahid who gives evidence in support of the statement, subject to section 88, shall be deemed to have committed an offence of qazaf.

Punishment for qazaf.

98. (1) Any person who commits qazaf and it is proved either by his ikrar, or by syahadah of at least two 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 to whipping with 80 strokes.

(2) Any person who commits qazaf before the Court and fails to prove his qazaf is guilty of an offence and shall be liable on conviction to hadd punishment to whipping with 80 strokes.

Illustration

A has committed qazaf against B and brought only one syahid to support his allegation. A has committed the offence under this section.

(3) After a person has been convicted for the offence of qazaf liable to hadd punishment, his syahadah shall not be admissible in any Court until he repents.

(4) Any person who commits qazaf—

(a) which is proved by evidence other than that provided under subsection (1);

(b) where the person liable to qazaf does not fulfill the conditions provided under section 96; or

(c) in cases mentioned under section 99,

is guilty of an offence and shall be liable on conviction to a fine not exceeding $20,000, imprisonment for a term not exceeding 5 years, whipping not exceeding 40 strokes or a combination of any two of the punishments.

Cases in which hadd punishment not imposed or enforced.

99. (1) Hadd punishment shall not be imposed for qazaf in any of the following cases—

(a) a person has committed qazaf against any of his descendants;

(b) the person who commits qazaf has died;

(c) qazaf has been proved to be true.

(2) Where before the execution of hadd punishment—

(a) the complainant withdraws the allegation of qazaf;

(b) the complainant's syahid retract their evidence or the complainant states that any of his syahid has given false evidence until the number of the syahid is less than two in accordance with Hukum·Syara';

(c) the complainant states that the person who commits qazaf has made a false confession; or

(d) the complainant pardons the person who commits qazaf,

hadd punishment shall not be enforced, but the Court may order retrial or impose the punishment under section 98(4) on the basis of the evidence before the Court.

(3) In this section, "descendant" means a person's biological children, whether male or female.

Issuing documents deemed to contain meaning of qazaf.

100. Any person who issues any document deemed to contain the meaning of qazaf that may harm the reputation or hurt the feelings of any person is guilty of an offence and shall be liable on conviction to a fine not exceeding $20,000, imprisonment for a term not exceeding 5 years, whipping not exceeding 40 strokes or a combination of any two of the punishments.

Sale of document deemed to contain the meanings of qazaf.

101. Any person who sells, offers for sale, displays or gives any document deemed to contain the meanings of qazaf that may harm the reputation or hurt the feelings of any person is guilty of an offence and shall be liable on conviction to a fine not exceeding $20,000, imprisonment for a term not exceeding 5 years, whipping not exceeding 40 strokes or a combination of any two of the punishments.

Attempt to commit qazaf.

102. Any person who attempts to commit qazaf or attempts to cause the commission of qazaf is guilty of an offence and shall be liable on conviction to a fine not exceeding $8,000, imprisonment for a term not exceeding 2 years, whipping with 10 strokes or a combination of any two of the punishments.

Abetting commission of qazaf.

103. (1) Any person who abets the commission of qazaf under section 98(1) is guilty of an offence and shall be liable on conviction to a fine not exceeding $20,000, imprisonment for a term not exceeding 5 years, whipping with 20 strokes or a combination of any two of the punishments.

(2) Any person who abets the commission of qazaf under section 98(4) is guilty of an offence and shall be liable on conviction to a fine not exceeding $12,000, imprisonment for a term not exceeding 3 years, whipping with 10 strokes or a combination of any two of the punishments.

Intoxicating drinks

Drinking etc. liquor or intoxicating drinks.

104.(1) Any Muslim who drinks liquor or any intoxicating drinks is guilty of an offence and shall be liable on conviction to hadd punishment to whipping with 40 strokes, whipping with 80 strokes for a second offence and whipping with 80 strokes and imprisonment for a term not exceeding 2 years for a third or subsequent offence.

(2) Any Muslim who drinks liquor or any intoxicating drinks liable to hadd punishment is proved either by ikrar of the accused, or by syahadah of at least two syahid according to Hukum Syara' other than the evidence of the accused after the Court is satisfied having regard to the requirements of tazkiyah al syuhud.

(3) Any Muslim who—

(a) drinks liquor or any intoxicating drink and it is proved by evidence other than that provided under subsection (2); or

(b) consumes liquor or any intoxicating drink,

is guilty of an offence and shall be liable on conviction to a fine not exceeding $4,000, imprisonment for a term not exceeding one year or both, and for the second or subsequent offence, to a fine not exceeding $8,000, imprisonment for a term not exceeding 2 years or both.

Explanation—A person who drinks or eats, drinks or food, into which liquor or any intoxicating drink has been mixed or added is said to consume liquor or any intoxicating drink.

(4) Any Muslim who makes, sells, advertises, serves, offers, gives as present, exhibits, owns, keeps, buys or possesses any liquor or intoxicating drink is guilty of an offence and shall be liable on conviction to a fine not exceeding $8,000, imprisonment for a term not exceeding 2 years or both.

(5) Any non-Muslim who drinks liquor or any intoxicating drink in public place is guilty of an offence and shall be liable on. conviction to a fine not exceeding $8,000, imprisonment for a term not exceeding 2 years or both.

(6) Any non-Muslim who sells, advertises, serves, offers, gives as present or exhibits any liquor or intoxicating drink to a Muslim is guilty of an offence and shall be liable on conviction to a fine not exceeding $8,000, imprisonment for a term not exceeding 2 years or both.

Attempt to commit offence of drinking etc. liquor or intoxicating drinks.

105. (1) Any Muslim who attempts to commit or attempts to cause the commission of the offence under the section 104(1), (3) or (4) is guilty of an offence and shall be liable on conviction to a fine not exceeding $4,000, imprisonment for a term not exceeding one year or both.

(2) Any non-Muslim who attempts to commit or attempts to cause the commission of the offence under the section 104(5) or (6) is guilty of an offence and liable on conviction to a fine not exceeding $4,000, imprisonment for a term not exceeding one year or both.

Abetting commission of offence of drinking etc. liquor or intoxicating drinks.

106. (1) Any person who abets the commission of the offence under section 104(1) is guilty of an offence and shall be liable on conviction to a fine not exceeding $8,000, imprisonment for a term not exceeding 2 years or both.

(2) Any person who abets the commission of the offence under section 104(3), (4), (5) or (6) is guilty of an offence and shall be liable on conviction to a fine not exceeding $4,000, imprisonment for a term not exceeding one year or both.

Irtidad

Irtidad.

107. (1) For the purposes of this Order, "irtidad" means any act done or any word uttered, by any means, by a Muslim who is mukallaf which according to Hukum Syara', such act or word affects or is contrary to the 'aqidah of the religion of Islam:

Provided that such act is done or such word is uttered intentionally, voluntarily, knowingly and without being compelled by anyone or circumstances.

(2) The acts or words which affect the 'aqidah are those which concern or deal with the fundamental aspects which must be known and believed by every Muslim such as Pillars of Islam, Pillars of Iman and other matters generally known by Muslims.

Declaring oneself as god.

108. (1) Any Muslim who declares himself or any other person as god and it is proved either by ikrar of the accused, or by syahadah of at least two syahid according to Hukum Syara' after the Court is satisfied having regard to the requirements of tazkiyah al syuhud, is guilty of the offence of irtidad and shall be liable on conviction to death as hadd.

(2) Any Muslim who declares himself or any other person as god and it is proved by evidence other than those provided under subsection (1) is guilty of the offence of irtidad and shall be liable on conviction to imprisonment for a term not exceeding 30 years and whipping not exceeding 40 strokes.

Declaring oneself as Rasul or Nabi.

109. (1) Any Muslim who declares himself or any other person as Rasul or Nabi and it is proved either by ikrar of the accused, or by syahadah of at least two syahid according to Hukum Syara' after the Court is satisfied having regard to the requirements of tazkiyah al syuhud, is guilty of the offence of irtidad and shall be liable on conviction to death as hadd.

(2) Any Muslim who declares himself or any other person as Rasul or Nabi and it is proved by evidence other than those provided under subsection (1) is guilty of the offence of irtidad and shall be liable on conviction to imprisonment for a term not exceeding 30 years and whipping not exceeding 40 strokes.

Contempt of Nabi.

110. (1) Any Muslim who contempts or brings into contempt Nabi Muhammad Sallallahu 'Alaihi Wa Sallam or any Nabi Allah and it is proved either by ikrar of the accused, or by syahadah of at least two syahid according to Hukum Syara' after the Court is satisfied having regard to the requirements of tazkiyah al syuhud, is guilty of the offence of irtidad and shall be liable on conviction to death as hadd.

(2) Any Muslim who contempts or brings into contempt Nabi Muhammad Sallallahu 'Alaihi Wa Sallam or any Nabi Allah and it is proved by evidence other than those provided under subsection (1) is guilty of the offence of irtidad and shall be liable on conviction to imprisonment for a term not exceeding 30 years and whipping not exceeding 40 strokes.

Deriding etc. verses of the Al-Qur'an, hadith or obligatory matters with ijma'.

111. (1) Any Muslim who—

(a) derides, mocks, mimics, ridicules or insults any verse of the Al-Qur'an or hadith of Nabi Muhammad Sallallahu 'Alaihi Wa Sallam;

(b) denies the hadith of Nabi Muhammad Sallallahu 'Alaihi Wa Sallam as a source or authority (hujjiyyah) of the teachings of the religion of Islam; or

(c) denies obligatory matters with ijma',

and it is proved either by ikrar of the accused, or by syahadah of at least two syahid according to Hukum Syara' after the Court is satisfied having regard to the requirements of tazkiyah al syuhud, is guilty of the offence of irtidad and shall be liable on conviction to death as hadd.

(2) Any Muslim who—

(a) derides, mocks, mimics, ridicules or insults any verse of the Al-Qur'an or hadith of Nabi Muhammad Sallallahu 'Alaihi Wa Sallam;

(b) denies the hadith of Nabi Muhammad Sallallahu 'Alaihi Wa Sallam as a source or authority (hujjiyyah) of the teachings of the religion of Islam; or

(c) denies obligatory matters with ijma',

and it is proved by evidence other than those provided under subsection (1) is guilty of the offence of irtidad and shall be liable on conviction to imprisonment for a term not exceeding 30 years and whipping not exceeding 40 strokes.

Declaring oneself as non-Muslim.

112. (1) Any Muslim who declares himself as a non-Muslim and it is proved either by ikrar of the accused, or by syahadah of at least two syahid according to Hukum Syara' after the Court is satisfied having regard to the tazkiyah al syuhud, is guilty of the offence of irtidad and shall be liable on conviction to death as hadd.

(2) Any Muslim who declares himself as a non-Muslim and it is proved by evidence other than those provided under subsection (1) is guilty of the offence of irtidad and shall be liable on conviction to imprisonment for a term not exceeding 30 years and whipping not exceeding 40 strokes.

Attempt to commit irtidad.

113. Any Muslim who attempts to commit or attempts to cause the commission of irtidad is guilty of the offence of irtidad and shall be liable on conviction to the same punishment as provided for such offence.

Illustrations

(a) A, a Muslim, takes an Al-Qur'an to be given to B for B to throw into a garbage disposal. When A wants to give the Al-Qur'an to B, B is not there. A is guilty of an offence under this section and may be liable to punishment under section 111.

(b) C, a Muslim, says that he is determined to renounce from the religion of Islam. C is guilty of an offence under this section and shall be liable to punishment under section 112.

Abetting commission of irtidad.

114. Any person who abets the commission of any offence of irtidad is guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding 30 years and whipping not exceeding 40 strokes.

Forfeiture and disposal.

115. The Court may order any document, publication, thing, object and structure and anything similar used in the commission of or in relation to any offence of irtidad to be forfeited and disposed, notwithstanding that no person may have been convicted of such offence.

Order to repent.

116. The Court shall, after sentencing an offender for any offence of irtidad and before execution of the punishment, order him to repent.

Acquit after repentance.

117. The Court shall after being satisfied that the offender has repented, make an order of acquittal from sentence on the offender.