Assault Causing Bodily Harm

Section 9.  Assault Causing Bodily Harm

There are three types of assault causing bodily harm:

1. Intentional assault causing bodily
2. Quasi intentional assault causing bodily harm.
3. Mistake cause bodily harm.

Explanatory Notes

Section 9 classification adopts Imam Ahmed and Shafi’i opinions. See 9 Ibn Qudamah, Al-Mughni Wa al-Sharh al-Kabir at 410. See also, Imam Shafi’i, 6 Kitab Al Oum at 45-6.

Bodily harm means any bodily injury including loss of an organ or impairment of the function of any bodily member or organ.

Section 9.1      Intentional Assault Causing Bodily Harm

Intentional assault causing bodily harm occurs when an actor intends to assault to cause a particular harm or that a particular harm was a likely consequence of the assault.

Section 9.2      Punishment for intentional Assault Causing Bodily Harm

1.The punishment for intentional assault causing bodily harm is Qisas punishment, that is the offender shall suffer the same harm he caused, unless;

1. The offender is the father, grandfather, great grandfather, mother, grandmother or great grandmother of the victim; or
2. It is not feasible to perform Qisas or that performing Qisas would cause more harm than created by the offense; or
3. The victim, or the victim’s nearest relative or Wali (legal guardian) pardons the offender in exchange for an agreed compensation; or
4. The victim, or the victim’s nearest relative or Wali (legal guardian) pardons the offender without any compensation.
5. When Qisas punishment is not applicable, the alternative punishment is Diya of an amount of not less than….and not exceeding …….
6. The court may also impose Ta’zir punishment of a fine not less than… and not exceeding … and/or imprisonment for a term not less than ….and not exceeding… when Qisas is not applicable.
7. The standard of proof for the application of Qisas punishment is beyond all doubt. Any doubt precludes Qisas Diya and Ta’zir punishment, if ordered by the court, shall be substituted if the court finds satisfactory evidence to warrant the punishment.

Explanatory Notes.

Section 9.2 (3) adopts opinions of Imam Abu Hanifa, Imam Ahmed and Imam Al-Shafi’i that Ta’zir punishment may imposed for its deterrent effects on the offender and on society in general.

Section 9.3      Quasi Intentional Assault Causing Bodily Harm

Quasi intentional assault causing bodily harm occurs when an actor intended to assault, but did not intend to cause a particular harm and the subsequent harm was an unlikely consequence of the assault.

Section 9.4      Punishment for Quasi Intentional Assault Causing Bodily Harm

1. Diya of an amount of not less than….and not exceeding …….

The court may also impose Ta’zir punishment of a fine not less than… and not exceeding … and/or imprisonment for a term not less than ….and not exceeding…

Section 9.5      Mistake Causing Bodily Harm

Mistake causing bodily harm occurs when an actor neither intended to cause harm nor was harm a likely consequence of his action.

Section 9.6      Punishment for Mistake Causing Bodily Harm

1. Diya of an amount of not less than….and not exceeding ……
2. The court may also impose Ta’zir punishment of a fine not less than… and not exceeding … and/or imprisonment for a term not less than ….and not exceeding….

Explanatory Notes

Diya for committing intentional assault causing bodily harm must be greater than Diya for committing mistake causing bodily harm because the offender intending to cause harm is more blameworthy than the offender in the case of mistake causing bodily harm.

Section 9.6 (2) adopts Imam Abu Hanifa, Imam Ahmed and Imam Al-Shafi’i that Ta’zir punishment may imposed for its deterrent effects on the offender and on society in general.