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Criminal Homicide

Criminal Homicide

By February 16, 2024No Comments

Criminal Homicide

Section 5.  Criminal Homicide

Homicide is the unjustified termination of a human life by an act or omission by another human being. Homicide includes intentional homicide, quasi-intentional homicide or mistake homicide.

Section 5.1            Intentional Homicide – Murder  

Intentional homicide is the unjustified termination of a human life when:

  1. The actor desired or was aware of his act or omission; and
  2. The actor desired the consequence of his act or omission (i.e. death) or was aware that the natural consequence of his act or omission is death.

Section 5.2      Causation

Intentional homicide requires that the actor’s conduct is likely to cause death.

Section 5.5      Intentional Homicide – Murder punishment

1.The punishment for intentional homicide is the death penalty unless;

  1. The offender is the father, grandfather, great grandfather, mother, grandmother or great grandmother of the victim.
  2. The victim, before death, or the victim’s nearest relative or Wali (legal guardian) pardons the offender.
  3. When capital punishment is not applicable, the alternative punishment is Diya of an amount of not less than….and not exceeding …….
  4. When capital punishment is not applicable, 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 …

The standard of proof required for inflicting death penalty is beyond all doubt. The prosecutor must prove every element of the offence beyond all doubt. Any doubt precludes the death penalty. Diya and Ta’zir punishment, if ordered by the court, shall substitute.

Section 5.6      Committing, Aiding, Abetting or Conspiring to commit Intentional Homicide Under Duress.

  1. Committing, aiding, abetting or conspiring to commit intentional Homicide under Duress is punishable by 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

Section 5.1 expressly states the requirements of intentional homicide

  1. The victim is a living human. Killing a fetus is not intentional homicide; live birth is required in case of a fetus. Similarly, harming a dead person with intent to kill does not constitute intentional homicide.
  2. Death occurred because of the actor’s act or omission.
  3. Either Intention to cause death or knowingly causing death, i.e. the actor is aware that his act or omission will cause death, is required for conviction.

Section 5.2 adopts the Shafi’i and Hanbali schools of thought proposal that the actor’s conduct was likely to cause death. This is especially true when the instrument that causes death is likely to cause death, such as the firing of a gun, striking the victim in the head with an iron bar and the like.  See 7 Nihayat al-muhtaj ila sharh al-Minhaj fi al-fiqh ala madhab al-Imam al-Shafi’i at 238. See also 9 Al-Mughni wa-yalihi al-sharh al-kabir at 321.

There must be a nexus between actor’s act and the result (causing death). It is not required that the actor’s act be the sole cause of death but that the actor’s act should be an effective cause of death. The actor remains liable not only for his acts but also for other causes of death that were generated because of the actor’s act. Once the actors’ act initiates the chain of events that lead to death of the victim, the actor is liable for the actions of others.   The ultimate criterion for deciding causation is custom. If the actor’s act customarily causes death, then the actor is held liable for death. This is important especially when the chain of events that lead to death is unusual.  However, when there is an intervening factor that breaks the chain of events, the actor is not liable.

Section 5.3 adopts the Hanafi and Malaki schools of thought opinion that consent to death is not a defense to intentional murder.  See 7 Bada’i’ as-Sana’i’ fi Tartib ash-Shara’i’ at 236.

Section 5.4 adopts the Hanafi school of thought opinion that a victim’s permission to harm that then accidently causes death, raises a doubt sufficient to preclude the punishment of death. See 7 Bada’i’ as-Sana’i’ fi Tartib ash-Shara’i’ at 236-7.

The punishment under Section 5.5 is personal. Accordingly, when more than one actor commits intentional criminal homicide, each actor is punished notwithstanding circumstances that prevent the death penalty application or liability for any other actor(s). For example, if a father and another killed a son intentionally, the father is not subject to the death penalty while the other offender remains subject to death penalty.  Similarly, when two actors kill a victim with one actor intending the killing while the other actor is mistakenly committing the killing, the actor who intentionally kills the victim may be subject to the death penalty and the mistaken actor is not. According to Malaki and Hanafi schools of thoughts, the in case of multiple victims murdered by one offender, if one of the victims’ nearest relative or Wali opted for Qisas– the death penalty- another victim’s nearest relative or Wali cannot require Diya. See 7 Bada’i’ as-Sana’i’ fi Tartib ash-Shara’i’ 239.  A pregnant woman shall not be subject to death penalty until she delivers the baby.  See 9 Ibn Qudamah, Al-Mughni wa al-sharh al-kabir at 394. Malak and Abu Hanifa suggested that death of the offender, for any reason, precludes application of Diya since Diya requires consent of the offender to its payment. Notably, pardoning the offender with or without the acceptance of Diya, as an alternative, is encourageable by virtue of Qur’an and Sunnah. Once pardoning occurs, the victims’ Wali or relatives shall be liable for homicide if they kill the offender.

Section5.5.1 (b) allows pardoning the offender by the victim, before death, or by the victim’s nearest relative or Wali. Pardon can be conditional on providing specific Diya. This reflects the opinions of Abu Hanifa, Shafi’i and Ahmed Ibn Hanbel.  See 7 Bada’i’ as-Sana’i’ fi Tartib ash-Shara’i’ at 247.

Section 5.6 adopts the Hanafi school of thought that an actor who aided, abetted, conspired or committed intentional homicide under duress is not subject to death penalty. See hadith:  “Verily Allah has pardoned for me my ummah: their mistakes, their forgetfulness, and that which they have been forced to do under duress.” A Hasan hadith related by Ibn Majah, and al-bayhaqi and others.

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